Action
Administrative determination of preemption by RSPA's Associate Administrator for Hazardous Materials Safety.
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.