15970 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Notices

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: Decision on petition for

reconsideration of administrative

determination of preemption.

PETITIONER: New York State Department

of Environmental Conservation

(NYDEC).

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.

SUMMARY: In response to NYDEC’s

petition for reconsideration, RSPA is

modifying its December 6, 1995

administrative determination

concerning the requirement in 6 NYCRR

372.3(a)(7)(iii) for secondary

containment at a transfer facility where

hazardous wastes are transferred

between vehicles or temporarily stored.

RSPA had determined that this

requirement was an obstacle to the

accomplishment of the HMR’s

provisions on packaging and

segregation. On reconsideration, RSPA

now finds that there is insufficient

information from which to determine

whether this requirement, as enforced

and applied, is an obstacle to the

accomplishment and carrying out of

Federal hazardous material

transportation law and the HMR.

RSPA affirms its prior determination

that Federal hazardous material

transportation law preempts subsections

(i) and (ii) of 6 NYCRR 372.3(a)(7) that

(1) prohibit transporters from

repackaging hazardous wastes

‘‘incidental to transport,’’ and (2)

require an indication on the manifest of

a transfer of hazardous wastes between

vehicles of the same transporter.

This decision constitutes RSPA’s final

action on the September 1993

application for a preemption

determination filed by the Chemical

Waste Transportation Institute (CWTI).

Any party who submitted comments in

Docket No. PDA–13(R) (including the

applicant) may seek judicial review

within 60 days of this decision.

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

In September 1993, CWTI applied for

a determination that Federal hazardous

material transportation law preempted

nine specific NYDEC requirements.

These requirements imposed conditions

on the transfer and storage of hazardous

wastes ‘‘incidental to transport’’ that, if

complied with, exempted a transporter

from having to obtain the separate

permit required for hazardous waste

treatment, storage and disposal (TSD)

facilities.

In amendments that took effect in

January 1995, NYDEC eliminated or

modified six of the challenged

requirements, including those allowing

storage only at a facility owned by the

transporter, limiting storage to five days,

and requiring daily inspections and a

log of shipments and receipts.

Following these amendments, the only

requirements originally challenged in

CWTI’s application that remained in

effect were:

(1) A prohibition against

‘‘consolidation or transfer of loads

* * * by repackaging in, mixing, or

pumping from one container or

transport vehicle into another.’’ 6

NYCRR 372.3(a)(7)(i).

(2) A requirement to indicate on the

hazardous waste manifest any ‘‘transfer

of hazardous waste from one vehicle to

another.’’ 6 NYCRR 372.3(a)(7)(ii).

(3) A requirement that the transfer or

storage area where containers of

hazardous waste are transferred from

one vehicle to another, or unloaded for

temporary storage, ‘‘must be designed to

meet secondary containment

requirements’’ set forth in 6 NYCRR

373–2.9(f). 6 NYCRR 372.3(a)(7)(iii).

On December 6, 1995, RSPA

published in the Federal Register its

determination that Federal hazardous

material transportation law preempts

these three requirements. PD–12(R),

New York Department of Environmental

Conservation Requirements on the

Transfer and Storage of Hazardous

Wastes Incidental to Transportation, 60

FR 62527. RSPA found that the

repackaging prohibition is preempted

because it is not substantively the same

as provisions in the HMR concerning

the packing, repacking, and handling of

hazardous material, and that the

manifest requirement is preempted

because it is not substantively the same

as the HMR’s requirements for the

preparation, contents, and use of

shipping documents related to

hazardous material. RSPA also

concluded that the secondary

containment requirement is preempted

as an obstacle to the accomplishment

and carrying out of the HMR’s

provisions on packaging and

segregation. (RSPA did not address one

additional restriction added in NYDEC’s

amendments that took effect in January

1995—that a transfer facility not be

located on the site of a commercial TSD

facility—because neither CWTI nor any

other party discussed the effect of this

restriction on hazardous waste

transporters or argued that it is

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

In Part II of its decision, RSPA

discussed the applicability of Federal

hazardous material transportation law to

the transportation of hazardous wastes

and the standards for making

determinations of preemption. 60 FR at

62529–62532. As explained there,

unless DOT grants a waiver or there is

specific authority in another Federal

law, a State (or other non-Federal)

requirement is preempted if:

—It is not possible to comply with both

the State requirement and a

requirement in the Federal hazardous

material transportation law or

regulations;

—The State requirement, as applied or

enforced, is an ‘‘obstacle’’ to the

accomplishing and carrying out of the

Federal hazardous material

transportation law or regulations; or

—The State requirement concerns a

‘‘covered subject’’ and is not

‘‘substantively the same as’’ a

provision in the Federal hazardous

material transportation law or

regulations. Among the five covered

subjects are (1) the ‘‘packing,

repacking [and] handling * * * of

hazardous material,’’ and (2) the

‘‘preparation, execution, and use of

shipping documents relating to

hazardous material’’ including

requirements related to the contents

of those documents.

See 49 U.S.C. 5125 (a) & (b). These

preemption provisions stem from

congressional findings that State and

local laws which vary from Federal

hazardous material transportation

requirements can create ‘‘the potential

for unreasonable hazards in other

jurisdictions and confounding shippers

and carriers which attempt to comply

with multiple and conflicting * * *

regulatory requirements,’’ and that
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Notices 15971

1RSPA has considered CWTI’s comments, even

though submitted after the 20-day deadline, under

a policy similar to that applied in rulemaking

proceedings. See 49 CFR 106.23 (‘‘Late filed

comments are considered so far as practicable.’’)

CWTI states that it did not receive a copy of

NYDEC’s petition for reconsideration directly from

NYDEC, and that bad weather further delayed its

preparation of responding comments. Under all the

circumstances, including the absence of any

apparent prejudice to NYDEC, it is appropriate to

consider the comments submitted by CWTI.

safety is advanced by ‘‘consistency in

laws and regulations governing the

transportation of hazardous materials.’’

Pub. L. 101–615 §§ 2(3) & 2(4), 104 Stat.

3244.

Within the 20-day time period

provided in 49 CFR 107.211(a), NYDEC

filed a petition for reconsideration of

PD–12(R). NYDEC certified that it had

mailed a copy of its petition to CWTI

and all others who had submitted

comments. Responses to NYDEC’s

petition for reconsideration were

submitted by the Association of Waste

Hazardous Materials Transporters

(AWHMT), the Hazardous Materials

Advisory Council (HMAC), and CWTI.1

II. Petition for Reconsideration

In its petition, NYDEC contends that

its repackaging prohibition and its

requirement for additional information

on the manifest are not substantively

different from requirements in the HMR.

It states that its prohibition ‘‘against

commingling of wastes does in fact

conform significantly to the federal

prohibitions against transferring

hazardous materials from one container

to another.’’ NYDEC claims to find

consistency between its absolute

prohibition against transferring wastes

from one container to another and

specific provisions in the HMR

forbidding combinations of hazardous

materials that cause unsafe conditions.

It argues that the prohibition in 49 CFR

177.834(h) against tampering with

containers of hazardous materials makes

it ‘‘clear’’ that transporters are not to do

‘‘anything that could undermine the

integrity of the container * * * until it

reaches its ‘billed destination.’ ’’

According to NYDEC, its repackaging

prohibition and manifest requirement

are both necessary to ‘‘preserve the

integrity of the generator accountability

concept’’ and are ‘‘appropriate for the

protection of public health and the

environment, and preventing releases,

the mixing of incompatible materials

and deliberate ‘cocktailing.’ ’’

NYDEC states that its requirement to

indicate any transfer of hazardous waste

from one vehicle to another is not

significant because it is simply

‘‘additional information that can neither

be viewed as a significant alteration nor

as a burden upon the transporter.’’ It

argues that the uniform hazardous waste

manifest required by the HMR ‘‘is not

integral to transportation; it is simply

paperwork’’ and only EPA has the

authority ‘‘to determine issues that arise

from the manifesting of hazardous waste

* * *’’

NYDEC also argues that its

‘‘regulation pertaining to secondary

containment is consistent with and

complementary of the HMR * * *’’ and

does not create ‘‘confusion’’ or

‘‘frustrate Congress’ goal.’’ It states that

‘‘RSPA has not satisfied its burden of

establishing that the New York

Regulation poses an obstacle to the

accomplishment and carrying out of the

HMR,’’ and points to EPA’s containment

requirements applicable to the storage of

used oil and wastes containing

polychlorinated biphenyls (PCBs) at

transfer facilities.

More generally, NYDEC states that its

regulations should not be found to be

preempted because they advance safety

in the transportation of hazardous

wastes as well as ‘‘generator

accountability, a central * * * concept’’

of the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6921 et

seq., and the Comprehensive

Environmental Response,

Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9601 et seq.

According to NYDEC, its ‘‘requirements

at issue are expressly contemplated by

RCRA.’’ It declares that, because

‘‘Congress did not intend to preempt

states from enacting their own

hazardous waste requirements pursuant

to RCRA,’’ RSPA lacks authority to find

that New York’s regulation are

preempted. It asserts that only ‘‘EPA,

not DOT, is the appropriate venue for

resolving’’ whether States may impose

additional, nonuniform requirements on

transporters of hazardous waste. NYDEC

also states that, ‘‘in the absence of

federal regulation, a federal statutory

policy of national uniformity does not

preclude state regulation,’’ and asserts

that RSPA has improperly applied the

statutory standard to find ‘‘preemption

of the entire field’’ of State regulations

on hazardous waste transporters.

III. Discussion

A. Repackaging Prohibition

RSPA’s December 1995 determination

noted that ‘‘the HMR do not contain any

general prohibition against the transfer

of hazardous material from one

container to another, or the combination

of commodities in the same packaging.’’

60 FR at 62534. RSPA further explained

that the HMR’s specific prohibitions

against tampering with a container of

hazardous materials, or combining

hazardous materials that would cause

an unsafe condition, are substantively

different from New York’s absolute

prohibition against repackaging

hazardous wastes. 60 FR at 62536.

NYDEC has never challenged the

statement in CWTI’s application that

combining the contents of several

smaller containers of hazardous waste

into a bulk packaging achieves

‘‘efficiencies in transportation that

promote safety’’ by reducing the overall

risks that are generally associated with

a greater number of smaller packagings.

Nor did NYDEC respond to the

comments discussed in the December

1995 determination that repackaging

promotes safety when shipments of

hazardous wastes are transferred

between trucks and railroads. 60 FR at

62535. As RSPA noted, in 1980, EPA

disclaimed any intention of

discouraging intermodal (truck to rail)

transfers of hazardous wastes. 60 FR at

62536. Yet, the restriction in 6 NYCRR

372.3(a)(7)(i) completely forbids

transferring hazardous wastes from one

bulk packaging to another (e.g., between

cargo tank motor vehicles and rail tank

cars), and it also prevents the combining

(or bulking) of identical wastes from the

same generator (e.g., transferring the

contents of numerous 55-gallon drums

into a single cargo tank). Safe

transportation of hazardous wastes is

not furthered by a repackaging

prohibition that is substantively

different from the HMR’s requirements

for packing, repacking, and handling

hazardous materials.

The comments of NYDEC and other

States also failed to support the claim

that ‘‘generator accountability’’ would

be frustrated without the requirements

found preempted, including NYDEC’s

repackaging prohibition. Indeed, EPA’s

regulations specify that, when a

transporter commingles wastes of

different DOT shipping descriptions, it

makes itself accountable for complying

with all generator requirements. 40 CFR

263.10(c)(2).

Because this prohibition against the

transfer or repackaging of hazardous

wastes is not substantively the same as

the HMR’s requirements for ‘‘the

packing, repacking, [and] handling’’ of

hazardous material, 6 NYCRR

372.3(a)(7)(i) is preempted by 49 U.S.C.

5125(b)(1).

B. Manifest Entry for Transfer Between

Vehicles

In its December 1995 determination,

RSPA referred to EPA’s development of

a manifest system which would ‘‘allow

‘the regulated community to adapt its

present practices, notably DOT’s
15972 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Notices

requirement for shipping papers, to

accommodate the new EPA

requirements.’ ’’ 60 FR at 62538, quoting

from 49 FR at 10490. EPA’s

requirements for a manifest, in 40 CFR

Parts 262 and 263, specifically apply

when hazardous wastes are being

transported or offered for transportation.

The HMR explicitly provide that the

EPA hazardous waste manifest may be

used as the DOT shipping paper (so long

as the manifest contains the information

required by DOT), 49 CFR 172.205(h),

and shipping papers ‘‘includ[e]

hazardous waste manifests.’’ 49 CFR

171.3(c)(3). RSPA has previously found

that requirements affecting a hazardous

waste manifest are ones that concern a

‘‘covered subject’’ in 49 U.S.C.

5125(b)(1). PD–2(R), Illinois

Environmental Protection Agency’s

Uniform Hazardous Waste Manifest, 58

FR 11176, 11182 (Feb. 23, 1993). The

hazardous waste manifest is clearly

integral to transportation, contrary to

NYDEC’s assertions.

A uniform hazardous waste manifest

was implemented in 1984 because of the

burden caused by the ‘‘proliferation of

manifests [when] various States decided

to develop and print their own forms.’’

49 FR 10490. Given the number of

States and other jurisdictions that

regulate hazardous waste, additional

and conflicting requirements in this area

are, by their very nature, more than an

‘‘[e]ditorial or other similar de minimis’’

change, 49 CFR 107.202(d), and

sufficient to create confusion and

reduce safety in the transportation of

hazardous materials. For this reason,

RSPA disagrees with NYDEC’s

conclusory statements that its

requirement to indicate a transfer of

hazardous waste between vehicles is not

a ‘‘significant alteration nor a burden

upon the transporter.’’

Because the requirement to indicate

on the manifest any transfer of

hazardous waste from one vehicle to

another is not substantively the same as

the HMR’s requirements for ‘‘the

preparation, execution and use of

documents related to hazardous

material and requirements related to the

* * * contents * * * of those

documents,’’ 6 NYCRR 372.3(a)(7)(ii) is

preempted by 49 U.S.C. 5125(b)(1).

C. Secondary Containment

In its December 1995 determination,

RSPA analyzed NYDEC’s requirement

for secondary containment under the

obstacle test in 49 U.S.C. 5125(a)(2). It

noted that the HMR focus on the

suitability of the container to contain

hazardous material during

transportation and proper handling

practices; 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. 60 FR

at 62539. RSPA also rejected NYDEC’s

arguments that its requirement for

secondary containment at a fixed

transfer facility is not a ‘‘transportation

issue.’’ RSPA explained that

‘‘transportation-related loading,

unloading, and storage of hazardous

materials (are) within the scope of

Federal hazardous material

transportation law, including the

preemption provisions in 49 U.S.C.

5125.’’ Id. at 62541. Based largely on its

earlier decision in IR–28, San Jose,

California; Restrictions on Storage of

Hazardous Materials, 55 FR 8884, 8893

(Mar. 8, 1990), appeal dismissed as

moot, 57 FR 41165 (Sept. 9, 1992),

RSPA found that NYDEC’s ‘‘secondary

containment requirement creates

confusion as to requirements in the

HMR and increases the likelihood of

noncompliance with the HMR.’’ Id. at

62542.

In response to NYDEC’s petition,

RSPA has reexamined the grounds for

its decision in IR–28, and it has

reviewed CWTI’s application and all the

comments submitted. The specific San

Jose storage requirements found

preempted in IR–28 were broader than

NYDEC’s secondary containment

requirement, because San Jose applied

both a subjective secondary

containment standard and provisions

for separation (or segregation) of

different classes of hazardous materials.

State or local segregation requirements

that differ from those in the HMR, at 49

CFR 177.848, affect the handling of

every container of hazardous material at

a transfer facility; they invariably create

confusion and complicate compliance

with the Federal requirements.

Moreover, no one disputed the effect of

the San Jose storage requirements

which, according to the applicant in IR–

28,

Would force it to transfer its hazardous

materials operations to its Oakland facility,

thereby causing transportation of larger

quantities of hazardous materials for greater

distances, as well as greater stockpiling of

hazardous materials by businesses in San

Jose which could not be as quickly served as

they presently are.

55 FR at 8889. Thus, it may be too broad

to read IR–28 as finding that any nonFederal requirement for secondary

containment at a transfer facility is

unnecessary and an obstacle to the

accomplishment and carrying out of the

HMR.

RSPA agrees with CWTI that

packaging standards are fundamental to

the HMR; a rule of general applicability

is that any packaging used for

transporting hazardous waste (or other

hazardous material) must be ‘‘designed,

constructed, maintained, filled, its

contents so limited, and closed, so that

under conditions normally incident to

transportation * * * there will be no

identifiable * * * release of hazardous

materials.’’ 49 CFR 173.24(b)(1)

(emphasis supplied). Nonetheless, some

releases do occur, from mishandling of

packages or other circumstances.

Moreover, New York’s secondary

containment requirement must be

considered applicable to situations

when containers are being opened as

part of consolidation or bulking

operations, because the prohibition

against repackaging in 6 NYCRR

372.3(a)(7)(i) has been found to be

preempted. The opening of containers

and transfer of their contents was not

considered in IR–28.

CWTI appears to acknowledge that

some containment measures are

desirable; it states that, ‘‘in practice,

industry conducts activities associated

with loading, unloading and storage of

waste hazardous materials in

transportation on impervious surfaces.’’

This limits the issue to whether the

specific conditions mandated by

NYDEC are an obstacle to the HMR.

Although CWTI argues that ‘‘sloping

and spill/runoff containment are

unnecessary,’’ and increase the

‘‘likelihood of shipment delay,’’ there is

insufficient evidence that New York’s

particular secondary containment

requirement, considered separately from

the preempted prohibition against

repackaging, actually causes delays or

diversions in shipments of hazardous

waste.

Some motor carriers stated only

generally that they did not transfer

hazardous wastes from one vehicle to

another, or store them temporarily at a

transfer facility, because of the existence

of the NYDEC requirements (including

those repealed or modified in January

1995). See the affidavits of officers of

Autumn Industries, Inc. and J.B. Hunt

Special Commodities, Inc., filed with

CWTI’s March 11, 1994 comments.

Others, such as Dart Trucking Company

and Nortru, Inc., stated that they did not

conduct transfer operations because

they did not own a transfer facility

within the State of New York (although

Dart did mention that NYDEC’s

secondary containment requirement

kept it from transferring containers of

hazardous waste between vehicles). The

Association of American Railroads

concluded that NYDEC was not

applying its ‘‘storage requirements’’ to

rail yards, because ‘‘[a] rail car moving
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Notices 15973

from origin to destination cannot be in

a ‘containment system’ having

‘sufficient capacity to contain 10

percent of the volume of containers or

the volume of the largest container,

whichever is greater.’ ’’

On reconsideration, these limited

comments do not support a finding that

NYDEC’s secondary containment

requirement, as applied and enforced,

causes the unnecessary delays in

transportation of hazardous materials

and creates the very ‘‘potential for

unreasonable hazards in other

jurisdictions,’’ about which Congress

expressed its concerns. See 60 FR 62530

(quoting Pub. L. sec. 2(3), 104 Stat.

3244). In the absence of more specific

evidence of the effects of this

requirement on the transportation of

hazardous waste, including the

repackaging and consolidation of

wastes, there is not sufficient

information to make a finding that this

requirement is an obstacle to

accomplishing and carrying out the

Federal hazardous material

transportation law and the HMR. For

this reason, RSPA withdraws that part

of the December 1995 determination

that Federal hazardous material

transportation law preempts 6 NYCRR

372.3(a)(7)(iii).

D. RSPA’s ‘‘Authority’’ To Issue

Preemption Determinations

RSPA has already considered, and

specifically rejected, arguments that it

has no authority to find that NYDEC’s

regulations are preempted. 60 FR at

62532, 62533–34. As AWHMT points

out in its comments, EPA has stated that

the rules and regulations of EPA and

DOT with respect to the standards for

transporters of hazardous waste are

‘‘interrelated.’’ EPA Final Rule,

Standards Applicable to Transporters of

Hazardous Waste, 45 FR 12737, 12738

(Feb. 26, 1980). RCRA itself mandates

that EPA’s regulations on hazardous

waste transporters must be consistent

with the HMR, 42 U.S.C. 6923(b), and

the two agencies ‘‘worked together to

develop standards for transporters of

hazardous waste in order to avoid

conflicting requirements.’’ 40 CFR

263.10, note. Accordingly, except for

bulk shipments by water, a hazardous

waste transporter who obtains an EPA

identification number and fulfills any

clean-up responsibilities will be in

compliance with EPA’s transporter rules

if it ‘‘meets all applicable requirements

of’’ the HMR. Id. To further ensure

compatibility, EPA also requires that a

generator who transports hazardous

waste off-site (or offers hazardous waste

for transportation) must comply with

DOT’s requirements on packaging,

labeling, marking, and placarding. 40

CFR 262.30, 262.31, 262.32, 262.33.

EPA has explicitly stated that it does

not consider issues of preemption under

49 U.S.C. 5125 when it approves a State

hazardous waste program. See the

discussion in PD–12(R), 60 FR at 62534.

Accordingly, RSPA cannot accept

NYDEC’s assertion that its challenged

requirements ‘‘are expressly

contemplated by RCRA.’’ Moreover,

NYDEC’s requirement for a transporter

to indicate on the manifest any transfer

of hazardous waste (between the same

transporter’s own vehicles) appears

inconsistent with EPA’s regulation that:

‘‘No State, however, may impose

enforcement sanctions on a transporter

during transportation of the shipment

for failure of the [manifest] form to

include preprinted information or

optional State information items.’’ 40

CFR 271.10(h)(3). EPA has also

explained that ‘‘States through which

hazardous waste shipments pass are not

allowed to place additional information

requirements on the transporter as a

condition of transportation.’’ EPA Final

Rule, Hazardous Waste Management

System, 49 FR 10490, 10495 (Mar. 20,

1984).

RSPA also disagrees with NYDEC’s

overall conclusion that the decision in

PD–12(R) sacrifices safety ‘‘in the name

of uniformity.’’ As HMAC points out,

uniformity of hazardous materials

regulations and safety are not

conflicting goals. Rather, Congress has

specifically found that, ‘‘consistency in

laws and regulations governing the

transportation of hazardous materials is

necessary and desirable.’’ Id. (quoting

Pub. L. 101–615 sec. 2(4)). AWHMT

represents that 19 different States,

including New York, enforce hazardous

waste transfer facility requirements that

differ from, or add to, the Federal

standards. Local governments and

Indian tribes often impose their own

requirements, all in the name of safety.

E.g., IR–32, Montevallo, Alabama,

Ordinance on Hazardous Waste

Transportation, 55 FR 36738 (Sept. 6,

1990); Public Serv. Co. of Colorado v.

Shoshone-Bannock Tribes, 30 F.3d 1203

(9th Cir. 1994) (tribal ordinance

regulating shipment of spent nuclear

fuel). However, these separate nonFederal requirements do not advance

overall safety when they require

shippers and carriers to ascertain,

understand, and comply with additional

conditions applicable in the many

jurisdictions through which a hazardous

materials shipment may be transported.

Less safety, rather than more, is the

result when shippers and carriers then

fail to comply with the HMR, choose

longer routes to avoid a jurisdiction

with additional requirements, or do

both.

IV. Ruling

For the reasons set forth above,

NYDEC’s petition for reconsideration is

denied with respect to 6 NYCRR

372(a)(7) (i) and (ii). This decision

incorporates and reaffirms the

determination that Federal hazardous

material transportation law preempts

subsection 372.3(a)(7)(i), prohibiting the

repackaging of hazardous wastes,

because it concerns the packing,

repacking and handling of hazardous

materials and is not substantively the

same as the HMR, and subsection

372.3(a)(7)(ii), requiring an indication

on the manifest of a transfer of

hazardous wastes between vehicles,

because it concerns the preparation, use

and contents of shipping documents

related to hazardous material and is not

substantively the same as the HMR. 49

U.S.C. 5125(b)(1) (B) and (C).

NYDEC’s petition for reconsideration

is granted with respect to 6 NYCRR

372(a)(7)(iii). Because there is

insufficient information that this

requirement, as enforced and applied, is

an obstacle to accomplishing and

carrying out the Federal hazardous

material transportation law and the

HMR, RSPA makes no determination

whether 49 U.S.C. 5125(a)(2) preempts

NYDEC’s requirement for secondary

containment at a transfer facility where

hazardous wastes are stored or

transferred.

V. Final Agency Action

In accordance with 49 CFR

107.211(d), this decision constitutes

RSPA’s final agency action on CWTI’s

application for a determination of

preemption as to the NYDEC transfer

and storage requirements in 6 NYCRR

372.3(a)(7). Any party to this proceeding

‘‘may bring a civil action in an

appropriate district court of the United

States for judicial review of [this]

decision * * * not later than 60 days

after the decision becomes final.’’ 49

U.S.C. 5125(f).

Issued in Washington, DC, on March 26,

1997.

Alan I. Roberts,

Associate Administrator for Hazardous

Materials Safety.

[FR Doc. 97–8553 Filed 4–2–97; 8:45 am]

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