State v. Asbestos Transportation Co. , 736 N.Y.S.2d 46 ( 2001 )

In an action, inter alia, to enjoin the defendant’s operation of an asbestos transfer station until such time as it is in compliance with all applicable statutory requirements, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Hall, J.), dated June 27, 2000, which denied their motion for a preliminary injunction, granted the defendant’s cross motion for summary judgment dismissing the complaint, and dismissed the complaint.

Ordered that the order and judgment is affirmed, with costs.

The plaintiffs commenced this action alleging that the defendant was operating an asbestos transfer station in violation of the New York State Environmental Conservation Law and the regulations promulgated thereunder. A transfer station is defined under 6 NYCRR 360-1.2 (b) (172), and provides for an exemption where the material transferred consists of “leak proof, closed containers of solid waste from vehicle to vehicle * * * for the purpose of consolidating loads for shipment to an authorized disposal or treatment facility.” The plaintiffs argued that the defendant did not fall within the exemption as it was packaging the asbestos in nonsolid containers. In response, the defendant argued that it was in compliance with the Federal regulation regarding the packaging of hazardous material, and that the Federal regulation preempted the stricter State regulation. The Supreme Court correctly determined that the Federal statute, 49 USC § 5125 (b) (1) (B) which governs the packing, repacking, and handling of hazardous materials during transportation, preempts the State’s requirements. Therefore, the defendant’s facility falls within the exemption under 6 NYCRR 360-1.2 (b) (172). The Supreme Court properly determined that the defendant was not operating an asbestos transfer station. Accordingly, it properly dismissed the complaint. S. Miller, J. P., Luciano, Smith and Adams, JJ., concur.