Pipeline and Hazardous Materials Safety Administration

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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 ``sig