Dept. of Env. Conserv. V. U.S. Dept. of Transp.

Decision Date09 February 1999
Docket NumberNo. 97-CV-784 (FJS)(RWS).,97-CV-784 (FJS)(RWS).
Citation37 F.Supp.2d 152
PartiesSTATE OF NEW YORK BY ITS DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Rodney Slater, Secretary of Transportation, Defendants, and Association of Waste Hazardous Materials Transporters, Intervenor-Defendants.
CourtU.S. District Court — Northern District of New York

Eliot Spitzer, Attorney General for the State of New York, Albany, NY (David A. Munro, Asst. Atty. Gen., of counsel), for plaintiff.

Thomas J. Maroney, United States Attorney for the Northern District of New York, Albany, NY (Thomas Spina, Jr., Asst. U.S. Atty. of counsel), United States Department of Justice, Washington, D.C. (Margaret S. McCarty, Special Asst. U.S. Atty. of counsel), for defendants.

Mayer, Brown & Platt, New York City (Philip A. Lacovara, of counsel), for Intervenor-Defendant.

Department of Environmental, Protection, Tallahassee, FL (Augusta P. Posner, Asst. Atty. Gen., of counsel), for Amicus Curiae.


SCULLIN, District Judge.


Plaintiff, the State of New York acting through its Department of Environmental Conservation ("NYDEC"), brings this action seeking the judicial review of a preemption determination made by the United States Department of Transportation ("DOT"). In that agency ruling, DOT found that New York regulation 6 N.Y.C.R.R. § 372.3(a)(7)(i), which in very general terms prohibits the consolidation and transfer of hazardous wastes, was preempted by the Hazardous Materials Transportation Act ("HMTA"). Presently before the Court are DOT's motion for summary judgment and NYDEC's cross-motion for summary judgment.


In October of 1993, the Chemical Waste Transportation Institute filed a petition with DOT for a preemption determination concerning several requirements established by NYDEC. Initially, nine provisions of the New York regulations were challenged, but because NYDEC eliminated and/or modified several requirements, DOT only ruled on three of them. In December of 1995, DOT determined that the three regulations were preempted by the HMTA. Upon reconsideration, however, DOT decided to reverse its decision with respect to one of the regulations, but to uphold its decision with respect to the other two.

On June 2, 1997, this action was commenced. Because NYDEC and DOT have reached an agreement with respect to one of the two regulations, the only remaining issue in this action is whether NYDEC's provision on consolidation and transfer of hazardous waste contained in 6 N.Y.C.R.R. § 372.3(a)(7)(i) is preempted by the HMTA.

Prior to discussing the merits of the motions, it is necessary to set forth the relevant statutes that are involved in the action and/or arguments of the parties.

Hazardous Materials Transportation Act

The Hazardous Materials Transportation Act ("HMTA") was enacted in 1975 to establish uniform standards for the transportation of hazardous materials in interstate commerce. In 1990, the HMTA was amended by the Hazardous Materials Transportation Uniform Safety Amendments Act of 1990, and with such amendments, Congress also changed the HMTA's preemption provision, in part to improve the uniformity of the application of the preemption rule.

Section 5125(a) of the HMTA contains a general preemption clause. This clause provides that:

Except as provided in subsections (b), (c), and (e) of this section and unless authorized by another law of the United States, a requirement of a State ... is preempted if —

(1) complying with a requirement of a State ... and a requirement of [the HMTA] is not possible; or

(2) the requirement of a State ... as applied or enforced, is an obstacle to accomplishing and carrying out [the HMTA].

49 U.S.C. § 5125(a).

Several specific substantive preemptions are also included in the HMTA in § 5125(b), as Congress believed these to be vital safety areas.

Section 5125(b)(1) states:

Except as provided in subsection (c) of this section and unless authorized by another law of the United States, a law, regulation, or other requirement of a State ... about any of the following subjects that is not substantively the same as a provision of [the HMTA], is preempted:


(B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material.

49 U.S.C. § 5125(b)(1)(B).

DOT was given statutory authority to promulgate regulations consistent with the HMTA, and has done so in the Hazardous Materials Regulations. See 49 C.F.R. §§ 171-179 (classifying hazardous materials and establishing requirements with respect to shipping papers, marking, labeling, placarding, packaging, highway routing, and driver training). In particular, DOT has established standards to utilize in determining whether a state requirement should be preempted. See 49 C.F.R. § 107.202.1 Additionally, the Secretary of DOT was given the authority to render decisions regarding whether state requirements are preempted.2 The Secretary also has the authority to grant a waiver of preemption when the state law: (1) provides the public at least as much protection as do the requirements under the HMTA; and (2) is not an unreasonable burden on commerce. See 49 U.S.C. § 5125(e).

Resource Conservation and Recovery Act ("RCRA")

The RCRA is a federal act that establishes a comprehensive scheme for the regulation of waste management activities. With respect to hazardous waste, the RCRA generally encourages the states to adopt their own programs. If the state program is at least as stringent as the RCRA, the United States Environmental Protection Agency ("EPA") may authorize the state to administer the RCRA hazardous waste program in that state. EPA has authorized NYDEC to administer the RCRA programs in New York. As such, New York has adopted a RCRA program, and in fact, the NYDEC regulation at issue in this case was promulgated under this authority and is more stringent3 than the RCRA requirements.

New York State Regulation

The NYDEC regulation at issue in this case is 6 N.Y.C.R.R. § 372.3(a)(7)(i), which states in relevant part:

The following standards are applicable to transporters of hazardous waste unless specifically exempted or modified in this section:

(a) General Requirements.


(7) Transporters are permitted to transfer hazardous waste, incidental to transport, provided that:

(i) No consolidation or transfer of loads occurs either by repackaging, mixing, or pumping from one container or transport vehicle into another.

6 N.Y.C.R.R. § 372(a)(7)(i).


Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence submitted in the light most favorable to the non-moving party, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 457, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir.1993). A genuine issue of fact is one that could be decided in favor of either party. See Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where, as here, the Court is faced with cross-motions for summary judgment, it is not obligated to grant either motion. Instead, each motion must be evaluated on its own merits, "`taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Heublein Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993) (quoting Schwabenbauer v. Board of Educ., 667 F.2d 305 (2d Cir.1981)).

Initially, the Court notes that the general basis for the doctrine of federal preemption of state laws within areas that the federal government has power to act is found in the Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2. However, a presumption against such preemption arises out of the Tenth Amendment in areas that the states have exercised their traditional police power. See U.S. Const. Amend. X; Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). Accordingly, where federal law touches upon an area traditionally governed by the states pursuant to their historic police powers, courts generally will not find preemption unless "that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947).

In this case, the intent of Congress to preempt state requirements in the five HMTA "covered subjects" was clear. In fact, Congress' intent to preempt in the general field of transportation of hazardous materials, which includes those five subjects, was so clear that Congress included two preemption provisions in the HMTA — one general and one specific. Each provision, however, allows for an exemption if the state regulation is "authorized by another law of the United States."

NYDEC seeks summary judgment4 asserting the following grounds as the basis for judgment in its favor: (1) the NYDEC regulation is authorized by another federal law, namely the RCRA, and therefore is not subject to preemption under the HMTA; and (2) that even if the NYDEC regulation is subject to preemption, the de novo standard of review applies in the Court's review of DOT's preemption determination, and DOT erred in deciding that the NYDEC regulation is "about" a HMTA "covered subject" and therefore expressly preempted. DOT also moves for summary judgment and counters that: (1) the NYDEC regulation is not authorized by the RCRA; and (2) its interpretation of the HMTA is entitled to substantial deference under the arbitrary and capricious standard of review, and the NYDEC regulation falls within a "covered subject" of the HMTA and is expressly preempted. The Court will address these arguments seriatim.

I. Authorization of the NYDEC Regulation by the RCRA

As stated, NYDEC...

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