Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Notices 77417

Committee to be held on Thursday,

December 14, 2000. The purpose of this

meeting was to review the agenda items

to be considered at the thirty-second

session of the Subcommittee on

Standards of Training and

Watchkeeping (STW 32) of the

International Maritime Organization

(IMO).

This notice is to announce that the

meeting is cancelled.

For further information, please

contact Chief, Office of Operating and

Environmental Standards, U.S. Coast

Guard Headquarters, Commandant (G–

MSO), room 1210, 2100 Second Street,

SW, Washington, DC, 20593–0001 or by

calling LCDR Luke Harden at: (202)

267–1838.

December 6, 2000.

Mira Piplani,

International Transportation and Commercial

Officer.

[FR Doc. 00–31585 Filed 12–7–00; 2:26 pm]

BILLING CODE 4710–07–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

[Docket No. RSPA–00–7740 (PDA–25(R))]

Application by the Kiesel Company for

a Preemption Determination as to

Missouri Prohibition Against

Recontainerization of Hazardous

Waste at a Transfer Facility

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Notice of Reopening Period for

Public Comment

SUMMARY: RSPA is reopening the period

for interested parties to submit

comments on an application by The

Kiesel Company (Kiesel) for an

administrative determination whether

Federal hazardous material

transportation law preempts a Missouri

regulation prohibiting the

recontainerization of hazardous waste

by a transporter at a transfer facility.

DATES: Additional comments received

on or before January 25, 2001, and

rebuttal comments received on or before

March 12, 2001, will be considered

before issuing an administrative ruling

on Kiesel’s application. Rebuttal

comments may discuss only those

issues raised previously or by comments

received during the initial comment

period and may not discuss new issues.

ADDRESSES: The application and all

comments received may be reviewed in

the Dockets Office, U.S. Department of

Transportation, Room PL–401, 400

Seventh Street, SW., Washington, DC

20590–0001. The application and all

comments are also available on-line

through the home page of DOT’s Docket

Management System, at ‘‘http://

dms.dot.gov.’’

Comments must refer to Docket No.

RSPA–00–7740 and may be submitted

to the docket either in writing or

electronically. Send three copies of each

written comment to the Dockets Office

at the above address. If you wish to

receive confirmation of receipt of your

written comments, include a selfaddressed, stamped postcard. To submit

comments electronically, log onto the

Docket Management System website at

http://dms.dot.gov, and click on ‘‘Help

& Information’’ to obtain instructions.

A copy of each comment must also be

sent to (1) Kiesel’s attorney, Mr. Richard

Greenberg, Greensfelder, Hemker &

Gale, P.C., 2000 Equitable Bldg., 10

South Broadway, St. Louis, MO 63102–

1774, and (2) Mr. Stephen M. Mahood,

Director, Missouri Department of

Natural Resources, P.O. Box 176,

Jefferson City, MO 65102. A certification

that a copy has been sent to these

persons must also be included with the

comment. (The following format is

suggested: ‘‘I certify that copies of this

comment have been sent to Messrs.

Greenberg and Mahood at the addresses

specified in the Federal Register.’’)

A list and subject matter index of

hazardous materials preemption cases,

including each Inconsistency Ruling

(IR) and Preemption Determination (PD)

issued by DOT, are available through

the home page of RSPA’s Office of the

Chief Counsel, at ‘‘http://rspaatty.dot.gov.’’ A paper copy of this list

and index will be provided at no cost

upon request to Mr. Hilder (see ‘‘For

Further Information Contact’’ below).

FOR FURTHER INFORMATION CONTACT:

Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs

Administration, U.S. Department of

Transportation, 400 Seventh Street,

SW., Washington, DC 20590–0001 (Tel.

No. 202–366–4400).

SUPPLEMENTARY INFORMATION:

I. Background

In a June 28, 2000 letter, Kiesel

applied for a determination that Federal

hazardous material transportation law,

49 U.S.C. 5101 et seq., preempts the

prohibition against recontainerization of

hazardous waste in a regulation of the

Missouri Department of Natural

Resources (DNR) at 10 CSR 25–

6.263(2)(A).10.H:

Recontainerization of hazardous wastes at

a transfer facility is prohibited; however,

hazardous waste containers may be

overpacked to contain leaking or to safeguard

against potential leaking. When containers

are overpacked, the transporter shall affix

labels to the overpack container, which are

identical to the labels on the original

shipping container; * * *

In its application, Kiesel stated that it

is a licensed hazardous waste

transporter that has a rail siding at its

facility located within the City of St.

Louis, Missouri. Kiesel stated that it

has been in discussions regarding the use of

the rail siding at its facility to provide a

transfer point for the off loading of hazardous

waste from rail cars to tankers or vacuum

trucks for transport to a disposal site in

Illinois licensed to receive and dispose of

hazardous waste. The transfer of hazardous

waste from the rail car to a trailer or a

vacuum truck would constitute

recontainerization which is prohibited under

Missouri regulations.

Notice of Kiesel’s application was

published in the Federal Register on

August 14, 2000, and interested parties

were invited to submit comments by

September 28, 2000, and rebuttal

comments by November 13, 2000. 65 FR

49633. In the August 14, 2000 public

notice, RSPA also referred to DNR’s

regulations on transporters of hazardous

waste set forth in 10 CSR 25–6.263; the

lack of any general prohibition in the

Hazardous Materials Regulations

(HMR), 49 CFR Parts 171–180, against

the transfer of hazardous materials from

one container to another; and Kiesel’s

argument that ‘‘an identical regulation’’

was found to be preempted in PD–12(R),

New York Department of Environmental

Conservation Requirements on the

Transfer and Storage of Hazardous

Waste Incidental to Transportation, 63

FR 62517 (Dec. 6, 1995), decision on

petition for reconsideration, 65 FR

15970 (Apr. 3, 1997), petition for

judicial review dismissed, New York v.

U.S. Dep’t of Transportation, 37 F.

Supp. 2d 152 (N.D.N.Y. 1999). 65 FR at

49633. In parts II and III of the August

14, 2000 public notice, RSPA discussed

the preemption provisions in 49 U.S.C.

5125 and the procedures for issuing

preemption determinations. Id. at

49634–35.

II. Comments Received and Request to

Withdraw Application

In response to the August 14, 2000

public notice, RSPA has received the

following submissions:

—An August 30, 2000 letter from Kiesel

clarifying that it had not been advised

by DNR that transferring hazardous

waste from a rail car to a motor

vehicle would constitute a prohibited

recontainerization of hazardous

waste, contrary to RSPA’s

understanding from Kiesel’s mention

77418 Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Notices

of ‘‘discussions’’ in its application.

See 65 FR at 49634. In this letter,

Kiesel also stated that ‘‘the plain

language of the regulation would

encompass this practice as it would

require that rail cars of bulk

hazardous waste would be placed in

new and different containers such as

vacuum trucks or tank trailers.’’

—A September 28, 2000 comment from

National Tank Truck Carriers, Inc.

(NTTC) which reads the Missouri

regulation to prohibit ‘‘the transfer of

[a hazardous] product from one

container to another.’’ NTTC stated

that it is ‘‘a national trade association

composed of approximately 200

trucking companies which specialize

in the transportation of hazardous

materials, hazardous wastes and

hazardous substances in cargo tank

motor vehicles throughout the United

States,’’ and implied that at least some

of its members are affected by the

Missouri prohibition against

recontainerization of hazardous

wastes at a transfer facility. It stated

that the Missouri prohibition is

preempted by Federal hazardous

material transportation law because

‘‘transportation’’ includes the

‘‘loading’’ and ‘‘unloading’’ of

hazardous materials incidental to

their movement, and Congress has

given DOT the ‘‘exclusive power’’ to

regulate matters involving the

‘‘packing, repacking [and] handling’’

of hazardous materials in

transportation.

—An undated letter from DNR stating

that it has informed Kiesel that ‘‘the

off-loading of hazardous wastes from

rail cars onto trucks, is not prohibited

by 10 CSR 25–6.263(1)’’ and

requesting an extension of the

comment period ‘‘in the event that

Kiesel does not withdraw’’ its

application. With this undated letter,

DNR attached a copy of its September

26, 2000 letter to Kiesel in which DNR

stated that it wants to ‘‘work with

Kiesel personnel to develop a

manifesting protocol to insure all

shipments will be accompanied by

proper documentation as required by

the Department of Transportation,

Environmental Protection Agency

[EPA], and the Department of Natural

Resources (DNR).’’

—An October 10, 2000 comment from

Safco Safe Transport (Safco), of

Seattle, Washington, objecting to an

extension of the comment period and

questioning whether DNR is

attempting to impose additional

requirements under a manifest

‘‘protocol’’ that goes beyond the HMR

or EPA’s regulations. Safco did not

indicate whether it operates in

Missouri.

—An October 12, 2000 letter from Kiesel

stating that it had no objection to a 30-

day extension of the period to

comment on its application in this

matter to ‘‘allow further clarification

of the position of the Department of

Natural Resources and determine if a

preemption determination is

necessary given the public position of

the Department.’’

—An October 30, 2000 letter from Kiesel

stating that it had received ‘‘written

assurances’’ from DNR that the

prohibition against recontainerization

of hazardous wastes ‘‘does not apply

to the transfer of hazardous wastes

transferred from railcars to trucks.’’

Kiesel did not provide a copy of the

written assurances it had received

from DNR. Kiesel stated that it was

withdrawing its application in this

matter.

—An undated note from Safco

withdrawing its earlier objection to an

extension of the comment period and

stating that preemption occurs by

‘‘operation of law’’ and ‘‘cannot be

withdrawn.’’

III. Discussion

RSPA does not have any procedure

for withdrawing an application for a

preemption determination. In the past,

RSPA has dismissed proceedings

involving a city ordinance that never

went into effect, Docket No. PDA–3(RF)

(Chester, West Virginia), 59 FR 4962

(Feb. 2, 1994), and a local requirement

that was repealed after the application

was filed, Docket No. PDA–14(R) (El

Paso, Texas), 62 FR 11677 (March 21,

1996). But RSPA has never stated that

an applicant can end a preemption

proceeding by simply withdrawing its

application when a non-Federal

requirement on transporting hazardous

materials remains in effect.

Unlike a lawsuit, these administrative

proceedings are initiated only when

RSPA publishes a notice in the Federal

Register inviting interested persons to

comment on an application. 49 U.S.C.

5125(d)(1), 49 CFR 107.203(d),

107.205(b). RSPA may dismiss an

application without prejudice and

return it to the applicant without

publishing a notice in the Federal

Register. See 49 CFR 107.207(b).

Moreover, there is no ‘‘default’’ suffered

in a preemption proceeding if the State,

locality, or Indian tribe does not submit

comments on an application. See, e.g.,

PD–5(R), Massachusetts Requirement for

an Audible Back-up Alarm on Bulk

Tank Carriers Used to Deliver

Flammable Material, 58 FR 62702 (Nov.

29, 1993), and IR–27, Colorado

Regulations on Transportation of

Radioactive Materials, 54 FR 16326

(Apr. 21, 1989), aff’d, Colorado Pub.

Util. Comm’n v. Harmon, 951 F.2d 1571

(10th Cir. 1991), reversing No. 88–Z–

1524 (D. Colo. 1989).

Any interested person may submit

comments on an application for a

preemption determination, unlike a

lawsuit where the proceedings are

limited to the named parties. 49 CFR

107.205(c). And RSPA may go beyond

the application and comments to

‘‘initiate an investigation of any

statements in an application and utilize

* * * any relevant facts obtained by

that investigation’’ and ‘‘may consider

any other source of information.’’ 49

CFR 107.207(a). Following issuance of a

determination, any ‘‘aggrieved’’ person

may file a petition for reconsideration,

49 CFR 107.211(a), and any party to the

proceeding may ‘‘bring an action for

judicial review.’’ 49 U.S.C. 5125(f), 49

CFR 107.213.

These differences from a lawsuit are

consistent with the very purpose for

issuing preemption determinations.

RSPA believes that the value in

deciding whether a non-Federal

requirement is inconsistent with (or

preempted by) Federal hazardous

material transportation law

goes beyond the resolution of an individual

controversy. At a time when hazardous

materials transportation is receiving a great

deal of public attention, the forum provides

[RSPA] an opportunity to express its views

on the proper role of State and local vis-avis Federal regulatory activity in this area.

IR–2, Rhode Island Rules and

Regulations Governing the

Transportation of Liquefied Natural Gas,

etc., decision on appeal, 45 FR 71881,

71882 (Oct. 30, 1980).

The manner in which a non-Federal

requirement is actually applied or

enforced must be considered under the

‘‘obstacle’’ test in 49 U.S.C. 5125(a)(2),

but not necessarily under the ‘‘dual

compliance’’ test in § 5125(a)(1) or the

‘‘substantively the same as’’ criteria in

§ 5125(b)(1)(A)–(E). On this point, RSPA

previously discussed an ‘‘extreme

example [of] the nonimplementation or

nonenforcement of a directly conflicting

State requirement,’’ and found that it

‘‘makes no sense * * * to say that since

there is no enforcement there is no

conflict.’’ Id. at 71883. Moreover, a

commenter in another proceeding has

asserted that a regulation or ordinance

is ‘‘enforced’’ whenever it remains in

effect, because persons feel compelled

to comply with the requirement even

when there have not been citations or

other ‘‘enforcement proceedings.’’ Thus,

there may be an issue whether a nonFederal requirement is an obstacle to the

Federal Register / Vol. 65, No. 238 / Monday, December 11, 2000 / Notices 77419

safe transportation of hazardous

materials and the specific requirements

in the HMR, even when not enforced,

because the requirement may cause

offerors or transporters of hazardous

materials to take actions that are not

required by the HMR, or refrain from

actions that are permitted under the

HMR.

While it may not be necessary to look

at the actual application of a nonFederal requirement, except when

applying the ‘‘obstacle’’ test, the words

in the requirement always set the scope

of the requirement. In some cases, terms

may be defined in the statute,

regulation, or ordinance. Otherwise,

those terms must be given their usual

and customary meaning. But RSPA

cannot accept efforts to interpret a nonFederal requirement in a manner that

‘‘is in direct conflict with the plain

language’’ of the State, local, or tribal

statute, regulation, or ordinance. PD–

14(R), Houston, Texas, Fire Code

Requirements on the Storage,

Transportation, and Handling of

Hazardous Materials, 63 FR 67506,

67510 (Dec. 7, 1998), decision on

petition for reconsideration, 64 FR

33949 (June 24, 1999).

Here, both NTTC and Safco appear to

support Kiesel’s position that RSPA

should consider the ‘‘plain language’’ of

Missouri’s prohibition against

recontainerization of hazardous waste

and find that the Missouri regulation is

preempted because it is not

substantively the same as Federal

requirements on ‘‘the packing,

repacking, [and] handling * * * of

hazardous material.’’ 49 U.S.C.

5125(b)(1)(B). Kiesel also specifically

refers to PD–12(R), where the applicant

and other persons indicated, without

contradiction, that New York’s

repackaging prohibition prevented a

transporter ‘‘from transferring the

contents of rail cars into trucks.’’ 60 FR

at 62536.

To date, very few comments have

been submitted on Kiesel’s application.

Neither Kiesel nor DNR has provided a

copy of the ‘‘written assurances’’

explaining why the prohibition against

recontainerization in 10 CSR 25–

6.263(2)(A).10.h would not apply to

Kiesel’s planned operations, nor has

DNR submitted any comments

explaining its regulation and why it is

not preempted by 49 U.S.C.

5125(b)(1)(B). Under these

circumstances, it is appropriate to

reopen the comment period rather than

simply to proceed to a determination in

this proceeding.

IV. Reopening of Comment Periods

The period to submit comments on

Kiesel’s application is reopened to allow

a new initial comment period of 45

days, followed by a 45-day period for

rebuttal comments.

All comments should address

whether 49 U.S.C. 5125 preempts the

prohibition against recontainerization in

10 CSR 25–6.263(2)(A)10.H, and, in the

context of the preemption criteria

discussed in the August 14, 2000 public

notice:

(1) explain the meaning of the

Missouri prohibition against

recontainerization of hazardous wastes

and the manner in which that

prohibition is applied and enforced; and

(2) address the assertions in Kiesel’s

August 30, 2000 letter that the Missouri

prohibition against recontainerization

precludes a transfer of hazardous waste

from a rail car to a motor vehicle and

is preempted because it is not

substantively the same as RSPA’s

regulations on the ‘‘packing, repacking,

[and] handling * * * of hazardous

material.’’ 49 U.S.C. 5125(b)(1)(B).

Persons intending to comment should

review the standards and procedures

governing consideration of applications

for preemption determinations, set forth

at 49 CFR 107.201–107.211.

Issued in Washington, DC on December 4,

2000.

Robert A. McGuire,

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration.

[FR Doc. 00–31477 Filed 12–8–00; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration (RSPA), DOT

[Docket No. RSPA–00–8452; Notice 1]

Pipeline Safety: Intent To Approve

Waiver and Environmental

Assessment of Waiver for Duke Energy

AGENCY: Office of Pipeline Safety,

Research and Special Programs

Administration, DOT.

ACTION: Notice of Intent to Consider

Waiver and Environmental Assessment

of Waiver.

SUMMARY: The Office of Pipeline Safety

(OPS) is conducting a Risk Management

Demonstration Program with pipeline

operators to determine how risk

management might be used to

complement and improve the existing

Federal pipeline safety regulatory

process. OPS selected Duke Energy

(Duke) as a candidate for participation

in the Demonstration Program;

subsequently, OPS and Duke held

discussions as part of a consultation

process. During the consultation, Duke

identified a portion of its system where

it believed performing alternative risk

control activities in lieu of compliance

with current regulations would result in

a comparable margin of safety and

environmental protection. Duke

submitted an application to OPS to

temporarily waive certain regulatory

requirements relating to class location

changes for five locations in a 3-line

system, ranging from 0.5 miles to 0.88

miles in length and totaling 12.2 miles

in fifteen pipeline segments. Duke had

previously reduced the operating

pressure along the fifteen segments in

accordance with these requirements and

seeks to return the pipeline to its

historical operating pressure. Duke has

completed many of the proposed

alternative risk control activities related

to assuring integrity of the pipeline in

the segments for which regulatory relief

is sought. Discussions continue between

OPS and Duke regarding programmatic

aspects of the company’s risk

management demonstration project.

This Notice announces OPS’s intent

to approve a waiver to allow Duke to

increase the allowable operating

pressure in these fifteen pipe segments.

OPS has reviewed the terms of this

waiver and found them to be

appropriate. Among the terms of the

waiver that were crucial to OPS’s

decision to consider granting the waiver

were Duke’s selection as a candidate for

the Risk Management Demonstration

Program, Duke’s subsequent

participation in the consultation process

with an OPS Project Review Team

(PRT), the comparable margin of safety

and environmental protection provided

by the proposed activities, and the

expectation that the continuing

discussions with Duke may result in

approval of their risk management

demonstration project. In addition, OPS

has found that the overall effect of the

waiver is not inconsistent with pipeline

safety. If granted, this waiver would

expire upon either the approval or

disapproval of Duke’s risk management

demonstration project.

OPS is considering whether or not

additional regulations to enhance

pipeline integrity in high consequence

areas are warranted for natural gas

transmission pipelines. Additional

information on integrity management

rule-related activities is available on the

OPS web site at http://ops.dot.gov.

Within 90 days of OPS’s adoption of

new rules related to integrity

management of natural gas pipelines,