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

[Preemption Determination No. PD-12(R); Docket No PDA-13(R)]

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: Administrative determination of preemption by RSPA's Associate

Administrator for Hazardous Materials Safety.

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APPLICANT: Chemical Waste Transportation Institute.

STATE LAWS AFFECTED: New York Codes, Rules and Regulations (NYCRR),

Title 6, Section 372.3(a)(7).

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.

MODES AFFECTED: Highway and Rail.

[[Page 62528]]

SUMMARY: Federal hazardous material transportation law preempts 6 NYCRR

372.3(a)(7) which restricts hazardous waste transporters' activities at

transfer facilities by (1) prohibiting the repackaging of hazardous

wastes; (2) requiring an indication on the manifest of a transfer of

hazardous wastes between vehicles; and (3) requiring secondary

containment for any storage or transfer of hazardous wastes. This

decision considers these requirements in the context of highway

transportation of hazardous wastes, including transfers between motor

and rail carriers. On their face, these requirements apply to all modes

of transportation.

The first two requirements are preempted by 49 U.S.C. 5125(b)(1)

because they are not substantively the same as provisions in the HMR

concerning (1) the packing, repacking, and handling of hazardous

material, and (2) the preparation, contents, and use of shipping

documents related to hazardous material. The requirement for secondary

containment is preempted because it is an obstacle to the

accomplishment and carrying out of the HMR's provisions on packaging

and segregation. 49 U.S.C. 5125(a)(2).

No party, including the applicant, has requested a determination

that Federal law preempts the requirement in 6 NYCRR 373-1.1(d)(1)(xv),

also incorporated by reference in 372.3(a)(6), that storage of

hazardous wastes incidental to transport may take place only at a

transfer facility that is not located on the site of a commercial

hazardous waste treatment, storage or disposal facility. Accordingly,

no decision is reached with respect to that requirement.

This determination does not consider the definitions of ``Storage

Incidental to Transport'' and ``Transfer Incidental to Transport,'' in

6 NYCRR 364.1(c)(12) and (14), because these definitions do not appear

to apply to the NYCRR transfer and storage requirements nor impose any

requirements or restrictions on transporters of hazardous wastes.

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,

telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

A. Application for Preemption Determination

In September 1993, the Chemical Waste Transportation Institute

(CWTI) applied for a determination that the former Hazardous Materials

Transportation Act (HMTA) preempted certain requirements of the New

York State Department of Environmental Conservation (NYDEC) applicable

to the transfer and storage of hazardous wastes incidental to

transportation (generally referred to in this determination as ``NYDEC

transfer and storage requirements'').

In general terms, these requirements impose conditions on the

transfer and storage of hazardous wastes ``incidental to transport''

that, if complied with, exempt the transporter from having to obtain

the separate permit required for treatment, storage and disposal (TSD)

facilities. As discussed more fully below, CWTI contends that these

NYDEC transfer and storage requirements are preempted because they are

not ``substantively the same as'' requirements in the HMR governing (1)

the packing, repacking and handling of hazardous materials and (2) the

content and use of the manifest which serves as a shipping paper

accompanying a shipment of hazardous waste. CWTI also contends that

most of the NYDEC transfer and storage requirements constitute an

obstacle to the accomplishment and execution of the HMTA and the HMR,

because they interfere with, or are not necessary for, the safe and

efficient transportation of hazardous waste.

On their face, the NYDEC transfer and storage requirements apply to

all modes of transportation. However, CWTI's application and all the

comments addressed these requirements only in the context of highway

transportation of hazardous wastes, including transfers between motor

and rail carriers.

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. The period for public comments was

extended when several States initially requested additional time to

submit comments, and NYDEC advised it was proposing revisions to its

regulations that have eliminated many of the specific requirements

challenged by CWTI. 58 FR 65226 (Dec. 13, 1993). Additional time was

then allowed for interested parties to comment on these proposed

revisions to the NYDEC transfer and storage requirements, including

whether requirements proposed to be repealed were being enforced. 59 FR

4312 (Jan. 31, 1994). Later, RSPA reopened the comment period to invite

further comments on the effect of preemption on ``States' ability to

appropriately regulate transporters of hazardous waste under RCRA,'' as

raised in a June 27, 1994 letter to RSPA from the Association of State

and Territorial Solid Waste Management Officials (ASTSWMO). 59 FR 40081

(Aug. 5, 1994). The comment period closed September 23, 1994.

Extensive comments were received from NYDEC, ASTSWMO, transporters

of hazardous wastes, industry organizations, and the following States:

California, Colorado, Connecticut, Maine, Maryland, Massachusetts,

Montana, Ohio, and Pennsylvania. Further comments were submitted by

CWTI.

B. Transfer Facilities and EPA's Regulations

Hazardous wastes, like many other commodities, are seldom

transported in a single vehicle from origin to destination. In issuing

a 1980 amendment to its hazardous waste regulations, the Environmental

Protection Agency (EPA) noted that

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. Shipments generally

are held at these facilities for short periods of time. The length

of time may vary due to such factors as scheduling and weather, but

because these facilities are intended to facilitate transportation

activities, rather than storage, the time is typically as short as

practicable.

Interim final amendments and request for comments, Hazardous Waste

Management System, etc., 45 FR 86966 (Dec. 31, 1980)

Commenters on CWTI's application described as a common practice the

transfer of hazardous wastes between vehicles, including transferring

the contents of one container into another. For example, NCH

Corporation referred to transporters who 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.

According to the Association of American Railroads (AAR):

It is a common transportation 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

[[Page 62529]]

cars and subsequent delivery to consignees for burying or recycling.

EPA's regulations provide that a transporter who mixes hazardous

wastes of ``different DOT shipping descriptions by placing them in a

single container'' must comply with the standards applicable to

generators. 40 CFR 263.10(c)(2). Transporters who simply hold hazardous

wastes ``for a short period of time in the course of transportation,''

45 FR 86966, are exempted from EPA's requirements applicable to TSD

facilities. Section 263.12 of 40 CFR states that:

A transporter who stores manifested shipments of hazardous waste

in containers meeting the requirements of Sec. 262.30 [specifying

packagings that meet DOT regulations] at a transfer facility for a

period of ten days or less is not subject to regulation under parts

270, 264, 265, and 268 of this chapter with respect to the storage

of those wastes.

C. NYDEC Transfer and Storage Requirements

In contrast, New York subjects transfer facilities to all the

requirements governing TSD facilities, including permits, unless the

hazardous waste transporter limits its activities at the transfer

facilities as follows:

Transfer of hazardous wastes by a transporter ``incidental

to transport'' is permitted by 6 NYCRR 372.3(a)(7) only if ``(i) no

consolidation or transfer of loads occurs either by repackaging in,

mixing, or pumping from one container or transport vehicle into

another[;] (ii) transfer of hazardous waste from one vehicle to another

is indicated on the Manifest as Second Transporter''; and (iii) the

transfer or storage areas where sealed containers are transferred from

one vehicle to another, or unloaded for temporary storage, are

``designed to meet secondary containment requirements'' set forth in 6

NYCRR 373-2.9(f).

Storage of hazardous wastes by a transporter ``incidental

to transport,'' is allowed by 6 NYCRR 372.3(a)(6) for ten calendar days

only if conditions specified in 6 NYCRR 373-1.1(d)(1)(xv) are met. The

latter section is contained in New York's Hazardous Waste Treatment,

Storage and Disposal Facility Permitting Requirements. It allows the

transporter an exemption from the requirement to obtain a TSD permit

when it stores manifested shipments of hazardous waste in DOT-

authorized packagings for ten calendar days or less, ``provided that

the transfer facility is not located on the site of any commercial

hazardous waste treatment, storage or disposal facility subject to

permitting'' by NYDEC.

Violations of NYDEC's regulations are punishable by civil and

criminal penalties. In addition, a transporter's permit may be revoked

or suspended, and the violator may be enjoined from continuing to

violate the regulations. N.Y. Envtl. Conserv. Law. 71-2703.

CWTI does not challenge the condition in Sec. 373-1.1(d)(1)(xv)

that storage of hazardous wastes at a transfer facility must be in DOT-

authorized containers. While CWTI's application also argued for

preemption of several other restrictions in Sec. 373-1.1(d)(1)(xv),

concerning the storage of hazardous wastes at transfer facilities (such

as daily inspections, a log of receipts and shipments, and facility

ownership), these other restrictions have been (1) combined with

similar requirements in Sec. 372.3(a), (2) eliminated, or (3) modified

for consistency with EPA's regulations. These amendments took effect on

January 14, 1995 (60 days after NYCRR filed amendments to 6 NYCRR with

the New York Secretary of State on November 15, 1994). N.Y.S. Register,

p.14 (Nov. 30, 1994).

The only restriction added by NYDEC's November 1994 amendments to

the transfer and storage requirements is the condition that a transfer

facility not be located on the site of a commercial TSD facility. CWTI

refers to this additional restriction in its March 11, 1994 comments,

but neither it nor any other party has discussed the effect of this

condition on hazardous waste transporters or argued that this condition

is preempted by 49 U.S.C. 5125.

In its application, CWTI also contends that the following

definitions in 6 NYCRR 364.1(c), defining terms used in Part 364

(governing Waste Transporter Permits), are also preempted:

(12) ``Storage Incidental to Transport'' means any on-vehicle

storage which occurs enroute from the point of initial waste pickup

to the point of final delivery for purposes such as, but not limited

to, overnight on-the-road stops, stops for meals, fuel, and driver

comfort, stops at the transporter's facility for weekends

immediately prior to shipment, or on-vehicle storage not to exceed

five days at the transporter's facility for the express purpose of

consolidating loads (where such loads are not removed from their

original packages or containers) for delivery to an authorized

treatment, storage or disposal facility.

(14) ``Transfer Incidental to Transport'' means any transfer of

waste material associated with storage incidental to transport where

such material is not unpackaged, mixed or pumped from one container

or truck into another.

However, these definitions do not appear to impose any requirements or

restrictions on transporters of hazardous wastes. Moreover, NYDEC has

stated that these definitions do not apply to the transfer and storage

requirements in 6 NYCRR Part 372 and 373. And CWTI has not indicated

that the scope of requirements in Part 364, governing permits for

transporters of hazardous wastes, is improperly broadened by these

definitions to the extent that transporter permit requirements are

preempted by 49 U.S.C. 5125. Accordingly, this determination does not

consider these two definitions.

The next part of this decision summarizes the regulation of

hazardous wastes as hazardous materials under the HMR, the criteria for

Federal preemption of non-Federal requirements applicable to the

transportation of hazardous materials, and RSPA's procedures for

issuing administrative determinations of preemption. Part III addresses

in detail NYDEC's three restrictions on transfer facilities that have

been challenged by CWTI's application and remain in effect following

the 1994 amendments to the transfer and storage requirements: (1) The

prohibition against repackaging, (2) the requirement to indicate on the

manifest any transfer of hazardous waste between vehicles, and (3) the

requirement for secondary containment for any storage or transfer of

sealed containers.

II. Federal Hazardous Materials Transportation Law

A. Scope of Federal Law and Application to Hazardous Wastes

The HMTA was enacted in 1975 to give the Department of

Transportation greater authority ``to protect the Nation adequately

against the risks to life and property which are inherent in the

transportation of hazardous materials in commerce.'' Pub. L. 93-633

Sec. 102, 88 Stat. 2156, amended by Pub. L. 103-272 and codified as

revised in 49 U.S.C. 5101. The HMTA ``replace[d] a patchwork of state

and federal laws and regulations * * * with a scheme of uniform,

national regulations.'' Southern Pac. Transp. Co. v. Public Serv.

Comm'n, 909 F.2d 352, 353 (9th Cir. 1980). On July 5, 1994, the HMTA

was among the many Federal laws relating to transportation that were

revised, codified and enacted ``without substantive change'' by Public

Law 103-272, 108 Stat. 745. The Federal law governing the

transportation of hazardous material is now found in 49 U.S.C. Chapter

51. Although the HMTA remains applicable to proceedings begun before

July 5, 1994, this determination will cite to the preemption criteria

presently set forth

[[Page 62530]]

in 49 U.S.C. 5125, because Congress made no substantive change.

The HMR, now issued under the 49 U.S.C. 5103(b)(1) mandate that the

Secretary of Transportation ``prescribe regulations for the safe

transportation of hazardous material in intrastate, interstate, and

foreign commerce,'' predate the HMTA. They had their origins in the

Explosives and Combustibles Act of 1908, 35 Stat. 554 (chap. 234), and

many of the provisions governing motor vehicles carrying hazardous

materials were originally issued by the Interstate Commerce Commission

under former Sec. 204 of the Interstate Commerce Act. After DOT assumed

responsibility for the regulation of hazardous materials, the HMR were

continued, but renumbered. 32 FR 5606 (Apr. 5, 1967).

To encourage the nationwide application of uniform requirements,

DOT has long encouraged States to adopt and enforce the HMR as State

law. Grants are available, under the Motor Carrier Safety Assistance

Program (MCSAP) of the Federal Highway Administration (FHWA), to States

that enforce the ``highway related portions'' of the HMR ``or

compatible State rules, regulations, standards, and orders applicable

to motor carrier safety, including highway transportation of hazardous

materials.'' 49 CFR 350.9(a). New York has adopted the HMR ``as the

standard for classification, description, packaging, marking, labeling,

preparing, handling and transporting all hazardous materials,'' 17

NYCRR 507.4(a)(1)(i), and these incorporated provisions of 49 CFR

``apply to all transportation within or through the State of New

York.'' 17 NYCRR 507.7.

Under the MCSAP program, in the year ending September 30, 1995, New

York was awarded almost $3.5 million in grants for enforcement of the

HMR and the Federal Motor Carrier Safety Regulations, 49 CFR Parts 350-

399. As a condition of receiving MCSAP grant funds in fiscal 1996, New

York has certified that it has adopted highway hazardous materials

safety rules and regulations that are substantially similar to and

consistent with the HMR.

All hazardous wastes are designated ``hazardous substances'' under

the Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA), 42 U.S.C. 9601(14)(C), and, as such, hazardous wastes

were explicitly required to be ``listed and regulated as * * *

hazardous material[s] under the Hazardous Materials Transportation

Act.'' 42 U.S.C. 9656(a). See also 49 CFR 171.8 (the term ``hazardous

material'' includes hazardous wastes.) The HMR apply to the

transportation of hazardous wastes by intrastate, interstate and

foreign carriers. 49 CFR 171.1(a).

Under the HMR, all hazardous materials (including hazardous wastes)

are classified according to their hazard characteristics (flammable,

corrosive, etc.) and must be packaged for transportation in containers

that meet prescribed design specifications or performance-oriented

standards. A package containing hazardous materials must be marked and

labeled, and the vehicle or freight container placarded, according to

the HMR's requirements. The package also must be accompanied by a

shipping paper that properly describes the hazardous material. An EPA

manifest (meeting the requirements of 40 CFR part 262) must be prepared

for any shipment of hazardous waste, and, if it contains all the

information required by DOT, the manifest may be used as the DOT

shipping paper. 49 CFR 172.205(a), (h).

In enacting RCRA in 1976, Congress provided that EPA's regulations

on transporters of hazardous waste must be consistent with the

requirements of the HMTA and the HMR. 42 U.S.C. 6923(b). Accordingly,

the EPA regulations on transporters of hazardous wastes adopted in 1980

contain a note to explain that:

EPA and DOT worked together to develop standards for

transporters of hazardous waste in order to avoid conflicting

requirements. Except for transporters of bulk shipments of hazardous

waste by water, a transporter who meets all applicable requirements

of 49 CFR parts 171 through 179 and the requirements of 40 CFR

263.11 [concerning an EPA identification number] and 263.31

[concerning cleanup of releases of hazardous wastes] will be deemed

in compliance with this part. 40 CFR 263.10, Note.

B. Federal Preemption

A statutory provision for Federal preemption was central to the

HMTA. In 1974, 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). More recently, a Federal

Court of Appeals found that uniformity was the ``linchpin'' in the

design of the HMTA, including the 1990 amendments which expanded the

preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d

1571, 1575 (10th Cir. 1991). 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.

Following the 1990 amendments and the subsequent 1994 codification

of the Federal law governing the transportation of hazardous material,

in the absence of a waiver of preemption by DOT under 49 U.S.C.

5125(e), ``a requirement of a State, political subdivision of a State,

or Indian tribe'' is explicitly preempted (unless it is authorized by

another Federal law) 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

Indian tribe, as applied or enforced, is an obstacle to the

accomplishing and carrying out this chapter or a regulation

prescribed under this chapter.

49 U.S.C. 5125(a). These two paragraphs set forth the ``dual

compliance'' and ``obstacle'' criteria which RSPA had applied in

issuing inconsistency rulings prior to the 1990 amendments to the HMTA.

While advisory in nature, these inconsistency rulings were ``an

alternative to litigation for a determination of the relationship of

Federal and State or local requirements'' and also a possible ``basis

for an application * * * [for] a waiver of preemption.'' Inconsistency

Ruling (IR) No. 2, Rhode Island Rules and Regulations Governing the

Transportation of Liquefied Natural Gas and Liquefied Propane Gas, etc.

44 FR 75566, 75567 (Dec. 20, 1979). 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 Co., 435 U.S.

151 (1978).

In the 1990 amendments to the HMTA, Congress also confirmed that

there is no room for differences from Federal requirements in certain

key

[[Page 62531]]

matters involving the transportation of hazardous material. As now

codified, a non-Federal requirement ``about any of the following

subjects, that is not substantively the same as a provision of this

chapter or a regulation prescribed under this chapter,'' 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.

49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the same'' to

mean ``conforms in every significant respect to the Federal

requirement. Editorial and other similar de minimis changes are

permitted.'' 49 CFR 107.202(d).

Since 1984, the HMR have also included the provision in 49 CFR

171.3(c) that:

With regard to hazardous waste subject to [the HMR], any

requirement of a state or its political subdivision is inconsistent

with [the HMR] if it applies because that material is a waste

material and applies differently from or in addition to the

requirements of [the HMR] concerning:

(1) Packaging, marking, labeling, or placarding;

(2) Format or contents of discharge reports (except immediate

reports for emergency response); and

(3) Format or contents of shipping papers, including hazardous

waste manifests.

This standard (which has been incorporated by reference in New York's

transportation regulations) followed the original preemption provision

in the HMTA that, unless DOT granted a waiver,

any requirement, of a State or political subdivision thereof, which

is inconsistent with any requirement set forth in this chapter [the

HMTA], or in a regulation issued under this chapter [the HMR], is

preempted.

Pub. L. 93-633 Sec. 112(a), 88 Stat. 2161. New York's regulations

specifically recognize that ``any requirement of the State or political

subdivision thereof which is inconsistent with Federal law or

regulations in the field is preempted,'' and refer to procedures under

which DOT can issue a waiver of preemption. 17 NYCRR 507.1(b).

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. This

administrative determination replaced RSPA's process for issuing

inconsistency rulings. The Secretary of Transportation has delegated to

RSPA the authority to make determinations of preemption, except for

those concerning highway routing which have been delegated to FHWA. 49

CFR 1.53(b). Under RSPA's regulations, preemption determinations are

issued by RSPA's Associate Administrator for Hazardous Materials

Safety. 49 CFR 107.209(a).

Section 5125(d)(1) requires that notice of an application for a

preemption determination must be published in the Federal Register. Id.

Following the receipt and consideration of written comments, RSPA

publishes its determination in the Federal Register. See 49 C.F.R.

107.209(d). 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 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 policy set forth in Executive Order No.

12,612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section

4(a) of that Executive Order authorizes preemption of State laws only

when a statute contains an express preemption provision, there is other

firm and palpable evidence of Congressional intent to preempt, 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.

Although cases cited by NYDEC and other commenters note the general

presumption against preemption, RSPA must consider CWTI's application

under the express preemption standards of 49 U.S.C. 5125. For that

reason, the issue is not whether ``there is a clearly demonstrated

compelling need for preemption,'' as NYDEC asserts, but rather whether

the non-Federal requirements, such as the NYDEC transfer and storage

requirements, fit the criteria in 49 U.S.C. 5125 for preemption.

The Massachusetts Department of Environmental Protection's Division

of Hazardous Materials appears to object to RSPA's procedure for

issuing preemption determinations. Massachusetts asserts that RSPA's

decision ``must be made on the basis of adjudicatory facts, not

legislative-type facts.'' It states that ``DOT/RSPA has no authority

for law-making with respect to preemption, only law-applying,'' and

that RSPA ``must make findings of fact in an adjudicative-type

proceeding, and then apply the facts to Congress' preemption

standard.'' However, RSPA disagrees with the position of Massachusetts

that a formal, fact-finding process under the Administrative Procedure

Act is required. As RSPA has stated, before it issues a determination

of preemption, each interested party, including the jurisdiction whose

requirements are challenged

has been afforded (1) notice and an opportunity to submit any

comments it wished; (2) the opportunity to petition for

reconsideration; and (3) the right to judicial review. Due process

does not require more. Nor is the Administrative Procedure Act

applicable here, since the HMTA does not require RSPA to make a

determination of preemption ``on the record after opportunity for an

agency hearing.'' 5 U.S.C. 554(a). See Wong Yang Sun v. McGrath, 339

U.S. 33 (1950), and Gardner v. United States, 239 F.2d 234, 238 (5th

Cir. 1956).

Preemption Determination (PD) No. 1, State Bonding Requirements for

Vehicles Carrying Hazardous Wastes, decision on petitions for

reconsideration, 58 FR 32418, 32420 (June 9, 1993), affirming initial

decision, 57 FR 58848 (Dec. 11, 1992), judicial review dismissed,

Massachusetts v. United States Dep't of Transp., Civil Action No. 93-

1581(HHG) (D.D.C. Apr. 7, 1995), appeal pending, No. 95-5175 (D.C.

Cir.).

On August 26, 1994, 49 U.S.C. 5125(d)(1) was amended to require

that DOT must issue its decision on an application for a determination

of preemption within 180 days after publication in the Federal Register

of receipt of the application, or DOT must publish a statement of ``the

reason why the * * * decision on the application is delayed, along with

an estimate of the additional time before the decision is made.'' Pub.

L. 103-311 Sec. 120(b), 108

[[Page 62532]]

Stat. 1681. Notice of CWTI's application was first published in the

Federal Register on October 15, 1993. However, for the reasons

explained above, the comment period was twice extended, later reopened,

and finally closed on September 23, 1994. NYDEC's amendments to its

transfer and storage requirements were not finalized until November 15,

1994, and did not become effective until January 14, 1995. These facts

made it impracticable to issue this decision within 180 days of the

Federal Register notice of CWTI's application.

III. Discussion

A. CWTI's Standing to Apply for a Preemption Determination

NYDEC and other States opposing CWTI's application assert that CWTI

lacks ``standing'' to challenge the NYDEC transfer and storage

requirements. NYDEC states that, based on CWTI's own statements, none

of CWTI's members have been ``adversely affected'' or ``aggrieved by

the challenged regulations.'' According to NYDEC, ``no [CWTI] member

has demonstrated any actual harm (such as lost profits or penalties for

failure to comply).'' NYDEC also asserts that, ``[s]ince the secondary

containment requirement is a facility safety standard, and not a

transportation issue, it is inapplicable to CWTI,'' and none of CWTI's

members ``have been impaired by the application or enforcement of this

requirement in their operations.''

The Pennsylvania Department of Environmental Resources and the

Montana Department of Health and Environmental Sciences both contend

that CWTI has failed to show that the NYDEC transfer and storage

requirements have been ``applied or enforced'' against transporters of

hazardous waste in New York. Massachusetts simply states that ``CWTI

has failed to state an injury for which relief pursuant to HMTA

Sec. 1811(a) [now 49 U.S.C. 5125 (a) and (b)] can be granted.''

In response, CWTI submitted affidavits by two of its members

stating that they do not engage in certain activities within the State

of New York because of, as set forth in one affidavit, ``the severity

of the New York Department of Environmental Conservation regulations

and the severity of the penalty for non-compliance.'' In other

comments, private companies indicate they have been complying with the

NYDEC transfer and storage requirements. For example, Chemical Waste

Management, Inc. attributes the lack of enforcement actions against it

to its ``conformance with those standards, which in part is based on

our belief that New York would exercise its enforcement prerogative on

companies not in compliance.'' Safety-Kleen states that it has obtained

permits, that it would not need in the absence of the NYDEC transfer

and storage requirements, in order to permit it to ``commingle and

repackage our mineral spirits solvents for ultimate transport to our

recycle centers.''

Section 5125(d) authorizes any person who is ``directly affected''

by a non-Federal requirement to apply for a determination of

preemption. That standard is a simple one; being ``affected'' means

only that the requirement applies to the applicant. The plain words of

the statute do not require showing that one is ``adversely affected,''

``aggrieved,'' or has suffered ``injury'' or ``actual harm.'' Issues of

enforcement (and how the non-Federal requirement is actually applied)

are relevant to whether or not there is an ``obstacle'' to executing

and carrying out the Federal law and regulations governing the

transportation of hazardous materials. But these issues do not bear on

whether the applicant is within the scope of those persons entitled to

use the administrative procedure set forth in Sec. 5125(d) for

obtaining a preemption determination, i.e., whether the non-Federal

requirement applies to the applicant.

Moreover, the question of whether NYDEC's secondary containment

requirement is a ``facility'' or ``transportation'' requirement cannot

be determinative of whether a person to whom that requirement applies

has ``standing'' to ask for a determination of preemption. Where

loading, unloading or storage occurs incidental to ``the movement of

property'' in commerce, that activity is within the scope of Federal

law governing the transportation of hazardous material and the HMR. See

49 U.S.C. 5102(12) (definition of ``transportation''). Requirements

affecting transportation facilities, and transporters' activities at

those facilities, are subject to Federal preemption. See IR-28, San

Jose, California; Restrictions on Storage of Hazardous Materials, 55 FR

8884, 8889-90 (Mar. 8, 1990), appeal dismissed as moot, 57 FR 41165

(Sept. 9, 1992). Similar requirements affecting a consignee's facility

and its handling of hazardous materials at that facility, after

transportation has ended, are ``beyond the scope of the HMTA,'' as

codified at 49 U.S.C. 5101 et seq. Id.; see also PD-8(R)--PD-11(R),

California and Los Angeles County Requirements Applicable to the On-

site Handling and Transportation of Hazardous Materials, 60 FR 8774,

8777-78 (Feb. 15, 1995) (petitions for reconsideration pending).

CWTI has provided sufficient information to establish that the

NYDEC transfer and storage requirements, including the requirement for

secondary containment, do apply to its members. Accordingly, it is

``directly affected'' by those requirements and entitled to submit this

application.

B. Claims That RCRA Authorizes the NYDEC Requirements

NYDEC and many of the States that submitted comments on CWTI's

application argue that the NYDEC transfer and storage requirements are

authorized by the provision in RCRA that:

Nothing in this title [42 U.S.C. Sec. 6921 et seq.] shall be

construed to prohibit any State or political subdivision from

imposing any requirements, including those for site selection, which

are more stringent than those imposed by [EPA] regulations.

42 U.S.C. Sec. 6929 (RCRA Sec. 3009).

NYDEC states that this provision ``explicitly invites state

requirements that are 'more stringent''' than Federal ones, and that

``a preemption determination will effectively repeal a basic tenet upon

which RCRA is based.'' Maryland and Pennsylvania concur that ``RCRA

expressly contemplates that state laws will be different and

specialized to each state's concerns. States are only preempted by RCRA

if state law is less stringent than RCRA.''

Maryland and Pennsylvania further contend that DOT has ``no

authority * * * to administer or interpret RCRA. Therefore, DOT's

construction or interpretation of RCRA is entitled to no weight or

deference at all.'' The Colorado Hazardous Waste Commission similarly

states that ``RSPA has no expertise in the field of hazardous waste,

[and] it should recognize the limits of its jurisdiction and defer to

the State of New York in this matter.''

The Maine Department of Environmental Protection asserts that more

stringent requirements in an EPA-authorized State hazardous waste

program take precedence over ``HMTA's transportation rules,'' and that

``the preemption criteria under HMTA does not extend into hazardous

waste transfer activities.'' Massachusetts mentions the ``special

regulatory status of hazardous waste'' and also contends that

``Congress left the states with their authority to enact requirements

governing generation, transportation, storage, treatment and disposal

which are more stringent than RCRA.'' Montana states that a 1982 EPA

memorandum ``expressed [the]

[[Page 62533]]

interpretation that provisions of an authorized State program which are

more stringent than the Federal counterparts become a part of the

requirements of RCRA, and fully enforceable by the EPA.''

The California Department of Toxic Substances Control similarly

asserts that ``RCRA stands as the minimum standards which States must

follow, and Congress did not intend to preempt states from promulgating

their own requirements pursuant to RCRA.'' It argues that NYDEC's

``loading and unloading requirements'' are authorized by both RCRA

Sec. 3009 and ``EPA's statutory obligation [in RCRA Sec. 3003, 42

U.S.C. Sec. 6923] to promulgate regulations which are necessary to

protect human health and the environment in the transportation of

hazardous waste.'' ASTSWMO also indicates that RCRA empowers States

``to create regulatory systems which are more stringent than federal

rules,'' and that ``these State rules have been closely analyzed by the

USEPA for consistency with federal statute and regulations, * * *''

In contrast to the States' arguments, CWTI points to EPA's own

statements that it does not examine State hazardous waste

transportation requirements for consistency with Federal hazardous

material transportation law. CWTI cites EPA's final determination on

California's hazardous waste program, 57 FR 32726, 32728 (July 23,

1992), where EPA found that ``preemption issues under other Federal

laws * * * do not affect the State's RCRA authorization,'' and an

August 17, 1994 letter signed by the Director of EPA's Office of Solid

Waste stating that:

A possible issue of preemption under HMTA would not affect the

programs's eligibility for RCRA authorization where the preemption

concern is unrelated to RCRA authorities. * * * Thus, EPA still

believes that the RCRA authorization decisions provide no basis for

shielding state regulations touching upon hazardous materials

transport from possible preemption challenges raised under the HMTA.

CWTI also argues that the ``more stringent than'' language in 42

U.S.C. 6929 simply prevents RCRA itself from prohibiting additional

State requirements, so that the ``more stringent than language'' is not

sufficient to specifically authorize the NYDEC transfer and storage

requirements. According to CWTI, the ``more stringent than'' language

does not prevent other Federal statutes from preempting State hazardous

waste requirements.

Moreover, CWTI finds that this language applies only to sites of

TSD facilities. It quotes a statement by Senator Bumpers, the sponsor

of the 1980 amendment that added the ``more stringent than'' language

to RCRA, that the purpose of that language was to ``permit States to

establish standards more stringent than Federal standards with regard

to the selection of sites for the disposal of hazardous waste

material.'' 125 Cong. Rec. 13,247 (1979).

CWTI contends that State requirements on hazardous waste

transporters must not be in conflict with the Federal hazardous

material transportation law and the HMR, because RCRA requires that (1)

EPA's regulations on transporters must be ``consistent with'' DOT's

requirements, 42 U.S.C. 6923(b), and (2) State hazardous waste programs

must be ``equivalent to'' and ``consistent with'' EPA's program. 42

U.S.C. 6926(b). CWTI refers to 40 CFR 263.12, under which a transporter

``who stores manifested shipments of hazardous waste in containers

meeting [DOT packaging] requirements'' for no more than 10 days at a

transfer facility need not meet other storage facility requirements.

For the position that there is no restriction on transporters mixing

wastes having the same DOT shipping description, CWTI cites the

provision in 40 CFR 263.10 that a transporter who ``[m]ixes hazardous

wastes of different DOT shipping descriptions by placing them in to a

single container'' must comply with the standards applicable to

generators. CWTI quotes the preamble to later amendments to 40 CFR Part

263, where EPA stated that the ``amendments do not place any new

requirements on transporters repackaging waste from one container to

another (e.g., consolidation of wastes from smaller to larger

containers) or on transporters who mix hazardous wastes at transfer

facilities.'' 45 FR 86967 (Dec. 31, 1980). Included with CWTI's

application is a March 1, 1990 letter signed by the Director of EPA's

Office of Solid Waste stating:

The bulking of characteristic hazardous waste shipments to

achieve efficient transportation may result in incidental reduction

of the hazards associated with that waste mixture. However, this

incidental reduction may not meet the definition of treatment (as

defined under 40 CFR Section 260.10) because it is not designed to

render the waste nonhazardous or less hazardous. Accordingly, such

activity may not require a RCRA permit.

The opposing arguments by the States and CWTI clearly focus the

issue of the relationship between Federal preemption under 49 U.S.C.

5125 and State requirements on hazardous waste transporters, under EPA-

authorized programs. This same issue was addressed in two of RSPA's

prior determinations concerning transporters of hazardous waste: PD-

1(R), above, 57 FR 58848, 58854-55, and PD-2(R), Illinois Environmental

Protection Agency's Uniform Hazardous Waste Manifest, 58 FR 11176,

11183 (Feb. 23, 1993). Further comments were specifically invited on

this issue in the August 5, 1994 Federal Register notice, which

reopened the comment period in response to ASTSWMO's request for an

opportunity to discuss ``the effect of RSPA [preemption] activities

upon States' ability to appropriately regulate transporters of

hazardous waste under RCRA.'' 59 FR 40081.

NYDEC's assertion that ``the regulation of intrastate

transportation of hazardous materials is a matter of peculiarly local

concern'' is not consistent with: (1) Congress's direction that

hazardous wastes must be ``listed and regulated as hazardous

material[s]'' under the former HMTA, 42 U.S.C. 9656(a); (2) its finding

that uniform requirements ``are necessary and desirable'' for the safe

transportation of hazardous materials, Pub. L. 101-615 Sec. 2, 104

Stat. 3244; (3) the mandate that DOT ``prescribe regulations for the

safe transportation of hazardous material in interstate, intrastate,

and foreign commerce,'' 49 U.S.C. 5103(b)(1); and (4) New York's own

adoption of the HMR as State law.

As already noted, the HMR presently apply to all intrastate and

interstate transportation of hazardous wastes, 49 C.F.R. 171.1(a), and

RSPA has proposed to expand the HMR's coverage to intrastate motor

carriers of all hazardous material. See Notice of Proposed Rulemaking

in Docket No. HM-200, Hazardous Materials in Intrastate Commerce, 58 FR

36920 (July 9, 1993), correction, 58 FR 38111 (July 15, 1993). (At

present, the HMR do not apply to intrastate motor carriers of hazardous

material other than hazardous wastes, hazardous substances, marine

pollutants, and flammable cryogenics in cargo and portable tanks, 49

CFR 171.1(a).)

Moreover, since the early 1900's, the HMR have applied to wastes

that were hazardous in transportation. In 1976, Congress recognized

this fact when it enacted RCRA and specifically directed that

regulations on hazardous waste transporters must be consistent with the

HMR; that requirement, in 42 U.S.C. 6923(b), remains unchanged. Under

these circumstances, RSPA cannot agree that there is a ``special''

status for State regulations on hazardous waste transporters, removing

them from preemption under 49 U.S.C. 5125, nor that a declaration that

the NYDEC transfer and storage requirements are

[[Page 62534]]

preempted ``will effectively repeal a basic tenet upon which RCRA is

based.''

RSPA has, in fact, looked to EPA's own interpretation of RCRA, as

requested by some of the State commenters. In its authorization of

California's hazardous waste program, EPA stated that permit

requirements for waste transportation ``facilities not regulated under

RCRA would be viewed as 'broader in scope' and, therefore, not part of

the authorized program,'' and that any such requirements could be

challenged in an application to DOT ``which has jurisdiction over such

matters.'' 57 FR at 32728. Accordingly, preemption issues under Federal

hazardous material transportation law

do not affect the State's RCRA authorization. * * * EPA does not

believe that an individual State's authorization application is the

appropriate forum to resolve problems which clearly affect a large

number of States. * * * [A] process is already in place intended to

address the problem pursuant to the [HMTA].

Id. In October 29, 1992 and August 17, 1994 letters, EPA has reaffirmed

this position.

EPA has consistently maintained that its approval of a State's

hazardous waste program does not preclude preemption by 49 U.S.C. 5125

of that State's requirements--regardless of whether the latter are

deemed ``broader in scope'' or ``more stringent'' than Federal RCRA

requirements. Section 3009 of RCRA, which allows States to impose

``more stringent'' requirements than those established by EPA, must be

read consistently with Federal hazardous materials transportation law.

A fundamental rule of construction is that two separate statutes

should be construed in a manner which is consistent and gives effect to

both. Morton v. Mancari, 417 U.S. 535, 551 (1974). In this case,

Congress clearly intended RCRA to be implemented consistently with the

HMTA. The legislative history of RCRA shows that EPA and DOT are to

work together to maintain consistent standards for hazardous waste

transporters which assure handling of the waste in a manner that (1)

protects human health and the environment, and (2) does not interfere

with transportation. H.R. Rep. No. 1491, 94th Cong., 2d Sess. 6, 27,

reprinted in 1976 U.S. Code Cong. & Ad. News 6238, 6244, 6265.

To carry out that intention, in section 3003(b) of RCRA (42 U.S.C.

6923(B)), Congress encouraged EPA to consult with DOT, and it required

EPA to promulgate hazardous waste transportation regulations in

consultation with DOT and consistent with the HMTA and the HMR. In

1980, Congress added section 2002(a)(6) to RCRA that the EPA

Administrator may delegate to DOT inspection and enforcement functions

relating to the transportation of hazardous waste, ``where such

delegation would avoid unnecessary duplication of activity and would

carry out the objectives of this Act and of the Hazardous Materials

Transportation Act.'' 42 U.S.C. 6912(a)(6) (emphasis added).

EPA's reading of the two statutes gives full effect to both. Under

that construction, EPA-authorized State requirements governing

hazardous waste transporters that are more stringent than EPA's own

regulations are preempted when those requirements fail to meet the

standards of 49 U.S.C. 5125. This properly places the power to make

hazardous materials transportation preemption decisions with DOT, the

agency charged by Congress to administer the Federal hazardous material

transportation law.

There is no basis for the position of NYDEC and other States that

any State can avoid preemption of its hazardous waste transporter

requirements simply by obtaining authorization under RCRA. Similarly

unfounded is the assertion by ASTSWMO that EPA actually does (or must)

analyze State hazardous waste transportation requirements ``for

consistency with Federal statute and regulations * * *'' during the

authorization process. Congress could not have intended that EPA

(rather than DOT) assume the burden of determining whether State

requirements are consistent with Federal hazardous material

transportation law and the HMR.

State requirements affecting transporters of hazardous waste are

not ``authorized by another law of the United States,'' within the

meaning of 49 U.S.C. 5125, simply because they are contained in an EPA-

authorized State hazardous waste program. See PD-1, above, 57 FR at

58855. The statement in 40 CFR 271.1(i), that nothing in EPA's State-

authorization regulations ``precludes a State from'' adopting or

enforcing more stringent requirements, is not authorization in an

enabling sense. That does not constitute specific authorization of

these State requirements, as is necessary to preclude preemption.

Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1581 n.10.

C. NYDEC Transfer and Storage Requirements

1. Repackaging Prohibition

Section 372.3(a)(7)(i) allows a transporter to transfer hazardous

wastes incidental to transport provided that

no consolidation or transfer of loads occurs either by repackaging

in, mixing, or pumping from one container or transport vehicle into

another.

The HMR contain numerous requirements covering loading, unloading,

and handling hazardous waste during transportation. See generally 49

CFR 173.1-173.40, Part 174 (railroads), and Part 177 (motor carriers).

However, the HMR do not contain any general prohibition against the

transfer of hazardous material from one container to another, or the

combination of commodities within the same packaging. For example, 49

CFR 173.21(e) forbids mixing of 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.'' In another section, the HMR provide that

Two or more materials may not be loaded or accepted for

transportation 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). And 49 CFR 173.10(e) forbids loading certain

flammable materials from tank trucks or drums into tank cars on the

carrier's property. As mentioned earlier, 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).

With regard to motor carriers only, the HMR prohibit the transfer

of 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). (The HMR also 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).)

CWTI asserts that NYDEC's prohibition against repackaging

containers of hazardous waste is preempted because it is not

substantively the same as the provisions in the HMR concerning ``the

packing, repacking, [and] handling * * * of

[[Page 62535]]

hazardous material,'' 49 U.S.C. 5125(b)(1)(B), and because it is an

obstacle to the HMR. It notes that EPA does not preclude the

commingling of hazardous waste by transporters, but merely specifies

that a transporter who mixes wastes of different DOT shipping

descriptions must comply with standards applicable to waste generators.

It argues that States may not treat hazardous wastes differently than

``fungible products such as coal, petroleum or acids'' that may be

repackaged during transportation.

CWTI points to EPA's March 1, 1990 letter, indicating that

repackaging of hazardous waste, for transportation, does not constitute

treatment for which a permit is required. It states that the absolute

prohibition against repackaging restricts transporters from taking

actions that actually promote safety, on the basis that it is safer to

consolidate loads from cargo tanks to tank cars and to combine the

contents of many individual packagings from multiple generators for

shipment to a TSD facility.

Other commenters, including Dart Trucking Company and Price

Trucking Company, complain that this restriction against repackaging

results in additional truck travel, wasted fuel, increased emissions,

and the inability to transfer wastes between trucks and railroads. AAR

also states that:

It generally is in the public interest to permit truck to rail

transfers of hazardous waste. Rail transportation is the best mode

of transporting hazardous waste; railroads have a favorable incident

rate and no ``midnight dumping'' problem. Furthermore, rail

transportation of hazardous waste to a recycling facility often can

be cheaper; heretofore, it has been public policy to make recycling

economical.

AAR argues that, because the HMR only prohibit truck-to-rail transfers

of certain flammable materials in limited circumstances, NYDEC's

absolute ban on transferring hazardous waste is inconsistent with the

HMR and therefore preempted.

The Hazardous Materials Advisory Council (HMAC) asserts that

hazardous wastes do not have any additional risks that justify NYDEC's

``discriminatory regulation'' of hazardous wastes differently from

other hazardous materials. Safety-Kleen also believes that ``the same

guidelines that are afforded to all non-waste hazardous materials''

should be applied to hazardous waste transporters; it advises that it

spends approximately $500,000 per year to obtain NYDEC TSD permits ``in

order to commingle and repackage our mineral spirit solvents for

ultimate transport to our recycle centers'' outside the State of New

York.

CWTI argues that 49 CFR 177.834(h) is not applicable to transfer

facilities. That section, applicable only to motor carriers, provides

in part that

There must be no tampering with [a] container or the contents

thereof nor any discharge of the contents of any container between

point of origin and point of billed destination. Discharge of

contents of any container, other than a cargo tank, must not be made

prior to removal from the motor vehicle.

According to CWTI, this provision covers ``illegal activity, such as

stealing freight,'' and ``discharges into the environment, not the

movement of material between DOT-authorized packagings.'' Referring to

an exchange of correspondence between the Federal Railroad

Administration (FRA) and Envirosafe Services of America discussing the

application of the HMR to the transfer of hazardous wastes ``from

gondolas to dump trucks,'' CWTI notes that FRA never indicated that

those transfers were prohibited. NCH Corporation also argues that the

``billed destination'' may be an intermediate point, such as a transfer

facility, and that 177.834(h)

is clearly intended to bar irresponsible handling or diversion of

hazardous materials in transportation, not to prevent the orderly

transfer of material from one DOT-approved container to another at a

transfer facility. * * * The transfer of material from container to

container in the ordinary course of business, with no release into

the environment, is not a ``discharge.''

NYDEC acknowledges that ``the RCRA uniform manifest system does

allow the commingling of wastes'' by transporters, while NYDEC's

transfer and storage requirements ``do not allow consolidation of loads

by repackaging, mixing or pumping an any intermediate, non-TSD location

short of the RCRA permitted `billed destination' which the generator

specifies.'' It argues that its prohibition against repackaging is

``consistent with and complimentary to'' 177.834(h), since both its

requirement and the HMR are ``aimed at preventing a release of the

hazardous material.'' NYDEC states that the term ``billed destination''

in 177.834(h) ``plainly refers to the ultimate destination,'' which is

the TSD facility from the generator's perspective.

NYDEC further argues that the HMR do not authorize, ``either

explicitly or implicitly,'' the commingling of hazardous wastes by

transporters, but that 177.834(h)

is obviously directed toward preventing unqualified persons from

tampering with packaging and containers. This ensures that wastes

are not commingled, eliminating the identification of the generator

and potentially destroying the integrity of the container * * *

For this reason, NYDEC states that its repackaging prohibition is not

an obstacle to accomplishing and carrying out the HMR, but rather

furthers the ``main objective of HMTA [which] is the safe transport of

hazardous materials.'' According to NYDEC, added costs of doing

business do not constitute an ``obstacle''; it argues that an obstacle

exists ``only when the regulations in question require conduct that is

prohibited by [49 U.S.C.] Chapter 51 or are incompatible with conduct

required by Chapter 51. * * *''

California asserts, as does NYDEC, that the NYDEC ``loading and

unloading'' requirement in 6 NYCRR 372.3(a)(7)(i) is not within the

list of covered subjects in 49 U.S.C. 5125(b)(1). However, it further

states that, if loading and unloading are covered subjects, the NYDEC

repackaging prohibition is substantively the same as 177.834(h),

because ``[t]he two regulations contain the same goal of disallowing

the tampering with and discharging of hazardous materials from

containers before a transporter reached its destination.''

Several of the State commenters contend that the NYDEC prohibition

against repackaging is not preempted because it regulates a facility

rather than transportation. Maine does

not believe that opening containers of hazardous waste, pouring,

pumping, mixing, or commingling are within the realm of transport

activities. Such activities constitute hazardous waste management

activities and Maine decided long ago that these activities must be

conducted at facilities which meet appropriate design standards and

in accordance with procedures developed to protect public health,

safety, and the environment. We further contend that transfer

activities fall under the realm of a storage/management activity and

not a transport activity.

Similarly, ASTSWMO stated that opening containers and commingling waste

are ``management activities,'' for which there should be ``the

safeguards of contingency plans, waste analysis plans, trained

personnel, sampling, compatibility determinations, etc.'' The Public

Utilities Commission of Ohio (PUCO) also states that,

in light of the fact that there are no Federal standards for

hazardous waste facilities, CWTI bears a difficult burden to

demonstrate that the NYDEC requirements, as applied or enforced,

create an obstacle to the accomplishment and execution of [49 U.S.C.

Chapter 51] and the Hazardous Materials Regulations. Generally,

where there are Federal standards or regulations, additional

[[Page 62536]]

state regulations may run the risk of confusing the regulated industry.

With respect to hazardous waste transfer facilities, there are no

Federal standards or regulations; therefore, the NYDEC regulations

create no risk of confusing the regulated industry.

Both ASTSWMO and PUCO urge RSPA not to find preemption. ASTSWMO

believes that ``these non-transport issues'' should be addressed by EPA

in a rulemaking process, rather than by RSPA in a preemption

determination. PUCO sees the ``need for uniform national standards for

hazardous waste transfer facilities'' beyond current EPA and DOT

requirements, and it asks that RSPA withhold any ruling on CWTI's

application until those uniform standards are established. It

recommends as a model the procedures being followed under 49 U.S.C.

5119 for establishing uniform State forms and procedures for

registration and permitting of hazardous material transporters.

CWTI and other commenters have explained that NYDEC'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. EPA has disclaimed any

``intention of discouraging rail transportation of hazardous wastes,''

and stated that 1980 amendments to its regulations specifically allow

``intermodal transportation involving railroads without the need for a

manifest accompanying the waste during the rail portion of the

shipment.'' Transportation of Hazardous Waste by Rail, 45 FR 86970,

86971 (Dec. 31, 1980). Intermodal shipments of hazardous wastes in bulk

cannot take place without the ``repackaging, mixing, or pumping''

prohibited by NYDEC's section 372.3(a)(7)(i).

By its very terms, this prohibition involves ``repackaging,'' and

is not substantively the same as the HMR's requirements for ``the

packing, repacking, [and] handling * * * of hazardous material.'' 49

U.S.C. 5125(b)(1)(B). The prohibited repackaging activities fall within

the scope of ``repacking'' and ``handling,'' specifically because they

involve ``loading'' and ``unloading.'' DOT has never interpreted 49 CFR

177.834(h) as a general prohibition against transferring hazardous

materials from one approved container to another. This is confirmed by

the limited prohibition, covering only flammable liquids, against

transfer from one container or vehicle to another on a ``public

highway, street, or road,'' subject to an exception with prescribed

procedures for emergency situations. 49 CFR 177.856(d).

There is also no indication that New York State (which has adopted

both 177.834(h) and 177.856(d) as State law) has interpreted the former

section to restrict either (1) combining the contents of several

packages of fungible commodities or (2) transferring materials between

modes of transportation. Section 177.834(h) must also be understood in

light of the historical practice, recognized in EPA's March 1, 1990

letter interpretation, that transporters may consolidate or mix

hazardous wastes of the same DOT shipping description without thereby

engaging in ``treatment'' (for which a permit is required) or becoming

subject to the regulations applying to hazardous waste generators.

NYDEC's attempt to characterize the repackaging prohibition in 6

NYCRR 372.3(a)(7)(i) as a ``facility'' requirement also cannot insulate

it from preemption. That prohibition applies to the ``repackaging'' and

``handling'' of hazardous materials in transportation, and it is not

substantively the same as

[[Page 62537]]

the requirements in the HMR. For that reason, 49 U.S.C. 5125(b)(1)(B)

preempts 6 NYCRR 372.3(a)(7)(1). In addition, NYDEC's prohibition

against repackaging containers of hazardous waste appears to be

inconsistent with the HMR because it applies solely to waste material

``and applies differently from or in addition to'' the HMR's

requirements concerning the packaging of hazardous materials. 49 CFR

171.3(c)(1).

2. Manifest Entry for Transfer Between Vehicles

Section 372.3(a)(7)(ii) allows a transporter to transfer hazardous

wastes incidental to transport provided that

transfer of hazardous waste from one vehicle to another is indicated

on the Manifest as Second Transporter.

The HMR require that a hazardous waste manifest be prepared in

accordance with EPA's regulations in 40 CFR 262.20 and be ``signed,

carried, and given'' as specified in 49 CFR 172.205. A manifest which

contains all the information required by DOT may be used as the DOT

shipping paper. 49 CFR 172.205(h). Procedures for use of the manifest

when wastes are shipped by railroad, including transfers between rail

and non-rail carriers, are specifically set forth in 40 CFR 263.20(f),

and allow a shipping paper to accompany the shipment (rather than the

manifest).

EPA's Uniform Hazardous Waste Manifest form is shown in the

Appendix to 40 CFR Part 262. Among the information required are the

company name and EPA identification number for the first and second (if

necessary) transporters. (If more than two transporters will be used to

transport the waste, a continuation sheet must be used to ``list the

transporters in the order they will be transporting the waste. * * *

Every transporter used between the generator and the [TSD] designated

facility must be listed.'') In a shaded portion, for information ``not

required by Federal law,'' are spaces for the State identification

number and telephone number of any transporter. In these spaces, NYDEC

requires ``State of registration and motor vehicle license plate number

of waste carrying portion of vehicle used to transport'' plus

``[t]elephone number of authorized agent.'' 6 NYCRR Part 372, Appendix

30. On the lower portion of the form are spaces for the transporter(s)

to acknowledge receipt of the hazardous waste, by name, signature, and

date.

RSPA has found that any State requirement that ``significantly

alter[s] the information supplied on the manifest,'' is preempted. PD-

2(R), above, 58 FR at 11183 (preempting Illinois requirement to round

quantities of hazardous waste to the nearest whole numbers, while the

uniform manifest form specifying entry of the ``total quantity'' of

hazardous waste may require the use of fractions or decimals, depending

on the unit of measure).

Neither EPA's regulations nor the HMR contain any requirement for a

single transporter to indicate, by license plate number or otherwise,

which vehicle is used to carry the hazardous waste, or that waste has

been transferred from one vehicle to another.

CWTI argues that NYDEC's requirement to indicate on the manifest

when waste is transferred from one vehicle to another is not

substantively the same as the HMR's requirements for ``the preparation,

execution, and use of shipping documents related to hazardous material

and requirements related to the number, contents, and placement of

those documents.'' 49 U.S.C. 5125(b)(1)(C). It asserts that a EPA

negotiated rulemaking committee ``specifically considered and rejected

an effort to require notation by license plate number'' when vehicles

of the same transporter were changed.

AAR states that rail cars are usually transferred between carriers

``without face-to-face contact,'' and ``shipping paper information may

be exchanged between carriers electronically.'' According to AAR,

railroads are

[[Page 62538]]

excepted from the signature requirements, ``including shipments which

ultimately are transferred between the rail and truck modes,'' citing

40 CFR 263.20(f) and 49 CFR 172.205(f).

NYDEC did not specifically address the requirement in 6 NYCRR

372.3(a)(7)(ii) that the manifest show any transfer of hazardous waste

from one vehicle to another owned by the same transporter. Its written

comments indicate this requirement was among those being eliminated,

but this requirement was retained in the amendments filed November 15,

1994.

In coordinated, but separate, rulemakings in March 1984, EPA and

DOT summarized the development of a uniform hazardous waste manifest

form. EPA, Hazardous Waste Management System, 49 FR 10490; RSPA Docket

No. 145D, Hazardous Waste Manifest; Shipping Papers, 49 FR 10507 (Mar.

20, 1984). As EPA indicated, when it established the manifest system in

1980, it decided to allow ``the regulated community to adapt its

present practices, notably DOT's requirements for shipping papers, to

accommodate the new EPA requirements.'' 49 FR 10490 (footnote omitted).

Accordingly, EPA specified only ``the required information that must

accompany the waste,'' and did not require a particular format. Id.

The lack of a standard form soon resulted in a ``proliferation of

manifests as various States decided to develop and print their own

forms,'' burdening both generators and transporters. Id. Based on

recommendations by ASTSWMO and HMAC, and the consideration of

approximately 300 comments to the two agencies, EPA and DOT amended

their separate regulations to require use of a uniform manifest,

effective in September 1984. At the time, they indicated that,

``[u]nder limited circumstances, States may impose [additional]

information or management requirements,''--but only on the waste

generator. 49 FR at 10492. As stated by EPA:

States are prohibited from applying enforcement sanctions on the

transporter during the transportation of hazardous waste for any

failure of the form to show optional State information entries.

States may hold transporters responsible only for ensuring that the

information included in the federally-required portions of the

Uniform Manifest form accompanies the shipment.

Id. DOT's preamble similarly stated that, ``no State may require a

carrier to provide information with or on the manifest which is in

addition to that authorized by the uniform manifest system.'' 49 FR

10508. Both agencies noted that States could require generators to send

other information ``under separate cover,'' 49 FR at 10492,'' or

``directly to the appropriate agency of [the] State * * * [c]onsidering

that the conventional means of transmitting data by mail, wire,

telephone and other means are very reliable and readily available.'' 49

FR at 10506.

Neither RCRA nor EPA's regulations authorize a State to require on

the manifest an indication that hazardous wastes have been transferred

between vehicles owned or operated by the same transporter. The

manifest must contain only the transporter's ``company name'' and EPA

identification number. 40 CFR Part 262, Appendix. The HMR also contain

no requirement to identify a shipment with a particular vehicle. For

this reason, the requirement in 6 NYCRR 372(a)(7)(ii) that the

transporter indicate, on the manifest, any ``transfer of hazardous

waste from one vehicle to another,'' is preempted because it is not

``substantively the same as'' the HMR's requirements for ``the

preparation, execution, and use of shipping

[[Page 62539]]

documents related to hazardous material and requirements related to the

number, contents, and placement of those documents.'' 49 U.S.C.

5125(b)(1)(C). In addition, NYDEC's requirement for indicating the

second vehicle on the manifest appears to be inconsistent with the HMR

because it applies solely to waste material ``and applies differently

from or in addition to'' the HMR's requirements concerning the

``contents of shipping papers, including hazardous waste manifests.''

49 CFR 171.3(c)(3).

3. Secondary containment

Section 372.3(a)(7)(iii) allows a transporter to transfer hazardous

wastes incidental to transport provided that

if consolidation of loads takes place by moving containers from one

transport vehicle to another or containers are removed from

transport vehicles prior to being reloaded, the transfer or storage

area must be designed to meet secondary containment requirements in

accordance with subdivision 373-2.9(f) of this Title.

The containment system specified in section 373-2.9(f) includes

requirements for an impervious base, drainage (unless containers are

elevated), capacity limits, prevention of run-on into the containment

system, and timely removal of spills or accumulated precipitation--

except that containers of wastes that do not contain free liquids

(other than certain acute hazardous wastes) need only be stored where

there is drainage or the containers are elevated or otherwise protected

from contact with accumulated liquid.

The HMR do not contain any requirements concerning the physical

design or construction of fixed facilities where transporters may

exchange hazardous materials between vehicles, including intermodal

operations. Rather, the HMR focus on the suitability of the container

and proper handling activities. Accordingly, 49 CFR 173.24(b) requires

that:

Each package used for the shipment of hazardous materials under

this subchapter shall be designed, constructed, maintained, filled,

its contents so limited, and closed, so that under conditions

normally incident to transportation--(1) * * * there will be no

identifiable (without the use of instruments) release of hazardous

materials to the environment; [and] (2) The effectiveness of the

package will not be substantially reduced; for example, impact

resistance, strength, packaging compatibility, etc. must be

maintained for the minimum and maximum temperatures encountered

during transportation.

Cargo tanks and tank cars must be built to specifications and

periodically retested and reinspected. See 49 CFR 180.407 (cargo

tanks), 180.509 (tank cars). Specific procedures, and attendance

requirements, apply to the unloading of both tank cars and cargo tanks.

49 CFR 174.67 (tank cars), 177.834 (cargo tanks). Separation and

segregation requirements also exist to prevent mixing of incompatible

materials. 49 CFR 174.81 (rail cars), 177.848 (motor vehicles).

CWTI contends that NYDEC's requirement for secondary containment is

``a direct challenge to the integrity of DOT packaging standards.''

According to CWTI, the HMR were based on ``the premise that packagings

can be built to contain hazards under conditions normal to

transportation.'' It states additional requirements in the HMR

supplement this central premise: segregation and separation

requirements, prohibitions on certain types of materials transported,

and requirements for immediate notification of any spills, the clean up

of any discharge, and financial responsibility for environmental

restoration. CWTI also refers to the requirement in 49 CFR Part 130 for

shippers and transporters of petroleum oils (including hazardous wastes

containing these oils) in containers larger than 3,500 gallons to

prepare response plans.

CWTI states that normal industry practice is to perform loading,

unloading, and storage of hazardous wastes ``on impervious surfaces,''

but that ``requirements for sloping and spill/run-off containment are

unnecessary.'' It

[[Page 62540]]

further asserts that both DOT and EPA have determined that there is no

need for secondary containment requirements at hazardous waste transfer

facilities, alluding to the absence of any such requirements in both

agency's regulations. CWTI places special significance on EPA's failure

to impose additional requirements after it specifically requested

comments in the preamble to its December 31, 1980 rulemaking. With

respect to a change to 40 CFR 263.12, EPA stated:

The amendments provide that the hazardous wastes being held at

transfer facilities must be in containers (including tank cars and

cargo tanks) which meet DOT specifications for packaging under 49

CFR 173, 178 and 179. This provision should ensure that the

hazardous waste remains properly packaged during this phase of

transportation. Although the Agency believes that this requirement

should provide adequate protection of human health and the

environment during the short period that hazardous wastes are held

at a transfer facility, we solicit comments on whether additional

requirements should be imposed, such as contingency plans, personnel

training, and inspections. Comments are specifically requested on

which, if any, of the [TSD facility] Part 265 requirements should be

placed on transporters who hold shipments of hazardous waste for ten

days or less.

Interim final amendments and request for comments, Hazardous Waste

Management System, etc., 45 FR 86966, 86967 (Dec. 31, 1980).

NYDEC argues that the focus of Federal hazardous materials

transportation law is ``explicitly limited to `transportation'

issues,'' while its requirements for secondary containment are

``facility requirements which establish minimum safety standards for

transfer facilities, and, contrary to CWTI's assertion, are not

intended to be a challenge to the integrity of DOT packaging

standards.'' NYDEC also contends that these ``facility standards,

rather than impairing the transportation of hazardous materials, serve

to advance what DOT has described as the `manifest purpose of the HMTA'

by promoting `safety in the transportation of hazardous materials.'''

(Quoting from IR-2, Rhode Island Rules and Regulations Governing the

Transportation of Liquefied Natural Gas and Liquefied Propane Gas, 44

FR 75566, 75571 (Dec. 20, 1979), decision on appeal, 45 FR 71881 (Oct.

30, 1980).)

According to NYDEC, the secondary containment requirement

``advances HMTA's goal of safety in the transportation of hazardous

materials by ensuring that hazardous materials which may inadvertently

escape from leaking or ruptured containers do not enter the

environment, where they are likely to present a risk to human health or

the environment.'' Maine similarly asserts that:

Absorbent pads and drip pans do not provide the same measure of

security that is present at a permitted facility. Facility standards

such as impervious surfaces combined with slopes and spill

containment provide an extra measure of environmental protection

that cannot be achieved by allowing this activity to be regulated

under HMTA as a transportation activity.

The Connecticut Department of Environmental Protection also believes

that DOT packaging standards alone will not ``guarantee that hazardous

materials will not leak or otherwise be released from their package.''

It cites two incidents ``involving containers that failed while in the

course of transportation,'' but acknowledges that ``both shippers

utilized containers that did not meet DOT specification/standards and/

or met DOT standards/specification but were still improperly packed * *

* '' It further states that shippers often put hazardous wastes into

``used containers since the material has negative value,'' and that

human errors cause releases from containers that meet DOT's

specifications or standards.

[[Page 62541]]

Connecticut notes that EPA requires secondary containment for TSD

facilities, and claims that ``wastes are more likely to be repacked at

transfer facilities rather than virgin materials.'' It also comments

that transfers actually take place ``both on and off impervious

surfaces and with or without secondary containment,'' and that remedial

measures are not sufficient when ``the damage has already been done.''

PUCO states that the existing industry practice to load, unload and

store hazardous wastes on impervious surfaces:

Demonstrates the need for a national uniform standard to ensure that

all hazardous waste transporters are engaging in these activities in

a safe, efficient manner. The need for, and the type of, secondary

containment mechanism can be established through the rulemaking

process.

As already discussed in connection with NYDEC's arguments on

``standing,'' subpart III.A. above, the definition of

``transportation'' in 49 U.S.C. 5102(12) brings transportation-related

loading, unloading and storage of hazardous materials within the scope

of Federal hazardous materials transportation law, including the

preemption provisions in 49 U.S.C. 5125. There is no difference in this

regard where these transportation-related activities take place, and

non-Federal requirements are not somehow immunized from preemption

simply because they purport to apply to what the transporter does at a

``facility.'' As noted in Consolidated Rail Corp. v. Bayonne, 724 F.

Supp. 320, 330 (D.N.J. 1989), the ``extent of federal regulation in the

area of the transportation, loading, unloading and storage of hazardous

materials is comprehensive'' (holding that the HMTA preempted a city

limitation on the number of loaded or unloaded butane rail cars

permitted on a storage and blending facility).

Two prior inconsistency rulings confirm that non-Federal

requirements that purport to regulate ``facilities'' are subject to

preemption when those requirements affect the transportation-related

loading, unloading and storage of hazardous materials. In the first,

RSPA found that a prohibition against holding hazardous materials for

more than 48 hours at a railroad yard without a permit was found to be

inconsistent with the HMR which allow retention for up to 120 hours, if

there are intervening weekends and holidays. IR-19, Nevada Public

Service Commission Regulations Governing Transportation of Hazardous

Materials, 52 FR 24404, 24406, 24409 (June 30, 1987), decision on

appeal, 53 FR 11600 (Apr. 7, 1988). In subsequent litigation, the Ninth

Circuit considered the same requirement and reversed a lower court

holding that the HMR did not address the ``storage of hazardous

materials.'' Southern Pac. Trans. Co. v. Public Serv. Comm'n, above,

909 F.2d at 356.

In the other ruling, RSPA considered San Jose, California's

requirements for secondary containment and segregation of hazardous

materials at a motor carrier's transfer facility. IR-28, above. In

arguments similar to those presented by NYDEC and other States, the

city argued that its ordinance ``regulates storage only and that it

does not regulate transportation nor purport to do so.'' 55 FR at 8887.

However, RSPA found that San Jose's ``requirements per se present

consistency problems when they are applied to storage of hazardous

materials incidental to their transportation.'' 55 FR at 8893.

State or local imposition of containment or segregation

requirements for the storage of hazardous materials incidental to

the transportation thereof different from, or additional to those in

[49 CFR] Sec. 177.848(f) of the HMR create confusion concerning such

requirements and the likelihood of noncompliance with

Sec. 177.848(f). Since such state or local requirements, therefore,

are obstacles to the execution of an HMR provision, they are

inconsistent with the HMR * * *

Id.

In the same fashion, NYDEC fails to achieve its asserted goal of

promoting

[[Page 62542]]

safety in the transportation of hazardous materials because its

secondary containment requirement creates confusion as to requirements

in the HMR and increases the likelihood of noncompliance with the HMR.

To the extent that States perceive the need for a uniform national

standard requiring secondary containment at transfer facilities, the

appropriate course is to petition RSPA to add this requirement to the

HMR in accordance with 49 CFR 106.31. The secondary containment

requirement in 6 NYCRR 372.3(a)(7)(iii) is preempted by 49 U.S.C.

5125(a)(2).

IV. Ruling

For the reasons set forth above, Federal hazardous material

transportation law preempts NYDEC's transfer and storage requirements

at 6 NYCRR 372.3(a)(7). Subsection (i), prohibiting the repackaging of

hazardous wastes, concerns the packing, repacking and handling of

hazardous materials, and it is not substantively the same as the HMR.

49 CFR 5125(b)(1)(B). Subsection (ii), requiring an indication on the

manifest of a transfer of hazardous wastes between vehicles, concerns

the preparation, use and contents of shipping documents related to

hazardous material, and it is not substantively the same as the HMR. 49

U.S.C. 5125(b)(1)(C). Subsection (iii) of 6 NYCRR 372.3(a)(7),

requiring secondary containment for the transfer or storage of

hazardous wastes at transfer facilities, is preempted because it is an

obstacle to the accomplishment and carrying out of the HMR's provisions

on packaging and segregation. 49 U.S.C. 5125(a)(2).

V. Petition for Reconsideration/Judicial Review

In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by

this decision may file a petition for reconsideration within 20 days of

service of this decision. Any party to this proceeding may seek review

of RSPA's decision ``in an appropriate district court of the United

States * * * not 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

service 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 service, 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, D.C. on November 30, 1995.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 95-29648 Filed 12-5-95; 8:45 am]

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