[Federal Register Volume 62, Number 64 (Thursday, April 3, 1997)]
[Notices]
[Pages 15970-15973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8553]



[[Page 15970]]

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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: Decision on petition for reconsideration of administrative 
determination of preemption.

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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

[[Page 15971]]

safety is advanced by ``consistency in laws and regulations governing 
the transportation of hazardous materials.'' Pub. L. 101-615 Secs. 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.<SUP>1
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    \1\ RSPA 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.
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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

[[Page 15972]]

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 non-Federal 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

[[Page 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 non-Federal 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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