[59 FR 28913]
[Federal Register: June 3, 1994]
DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration
[Preemption Determination No. PD-7(R); Docket No. PDA-12(R)]
Maryland Certification Requirements for Transporters of Oil or Controlled Hazardous Substances
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of Administrative determination of Preemption by RSPA's Associate Administrator for Hazardous Materials Safety.
APPLICANT: Chemical Waste Transportation Institute and National Tank Truck Carriers, Inc.
STATE LAWS AFFECTED: Code of Maryland Regulations 26.10.01.16.D and 26.13.04.01.F.
APPLICABLE FEDERAL REQUIREMENTS: Hazardous Materials Transportation Act (HMTA), 49 App. U.S.C. 1801 et seq., and the Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180.
MODE AFFECTED: Highway.
SUMMARY: Maryland regulations requiring certification of operators of motor vehicles loading or unloading oil or "controlled hazardous substances" in Maryland are preempted by 49 App. U.S.C. 1811(a)(2) as they apply to operators of vehicles transporting hazardous materials not domiciled in Maryland. These requirements are stricter than operator training requirements promulgated under the HMTA, and therefore are obstacles to accomplishing the full purposes and objectives of the HMTA. As applied to operators domiciled in Maryland, the requirements are not preempted.
FOR FURTHER INFORMATION CONTACT: Charles B. Holtman, Office of the Chief Counsel, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street SW, Washington, DC 20590-0001, telephone number (202) 366-4400.
SUPPLEMENTARY INFORMATION:
I. Application for Preemption Determination
On April 19, 1993, the Chemical Waste Transportation Institute (CWTI) and the National Tank Truck Carriers, Inc. (NTTC) jointly applied for a determination of preemption pursuant to 49 CFR 107.203. The CWTI/NTTC application seeks an administrative determination that the HMTA preempts State of Maryland certification requirements for operators of vehicles loading or unloading oil or "controlled hazardous substances" in Maryland.
On May 19, 1993, RSPA published a Public Notice and Invitation to Comment, providing for comments until June 23, 1993, and rebuttal comments until August 29, 1993. 58 FR 29322. Eight transporters of oil, hazardous waste or hazardous materials, one transporter association and one environmental services firm submitted comments supporting preemption of one or both sets of certification requirements. The Maryland Department of the Environment, Waste Management Administration (MDE), submitted comments opposing preemption of the requirements for operators of oil transport vehicles, but took no position on the requirements for operators of controlled hazardous substance transport vehicles. The Commonwealth of Massachusetts, Department of Environmental Protection, Division of Hazardous Materials (MassDEP), submitted comments opposing preemption in part. CWTI/NTTC submitted rebuttal comments responding to those of MDE and MassDEP.
A. Maryland Requirements for Operator Certification
The two provisions of Maryland law for which CWTI/NTTC request a determination of preemption impose certification requirements on operators of motor vehicles used to transport oil or "controlled hazardous substances."
1. Oil Transporter's Certificate
The first certification requirement for which CWTI/NTTC seek a finding of preemption is Code of Maryland Regulations (COMAR) 26.10.01.16.D. This regulation, issued pursuant to general statutory authority in Environment Article Sec. 4-405, Annotated Code Maryland, prescribes that "[a] vehicle used in the transport or transfer of oil shall be operated by a driver possessing a valid Oil Vehicle Operator's Certificate" issued by MDE. Read in conjunction with COMAR 26.10.01.17.A, the requirement applies only to operators of oil cargo tank vehicles. Further, it applies only to vehicles into which oil is loaded, or from which it is unloaded, in Maryland; it does not apply to operators of vehicles that simply pass through the State. COMAR 26.10.01.17.B. The certificate is issued "after the driver has completed an examination and has obtained a passing grade indicating his knowledge of the procedures employed for the safe handling of oil, oil spill control measures and oil spill reporting requirements." COMAR 26.10.01.17.A(2). The operator must carry the certificate whenever engaged in the transfer or transport of oil. COMAR 26.10.01.17.A(4).
An operator must preregister for the examination, which is given at five in-state locations and at out-of-state business locations as approved by MDE. There is no fee for the examination or the certificate. The certificate is valid for five years.
2. Controlled Hazardous Substance Transporter's Certificate
The second certification requirement for which a finding of preemption is sought is COMAR 26.13.04.01.F(1). This provision, enacted pursuant to Environment Article Sec. 7-252(b), Annotated Code of Maryland, states:
A person may not transport any CHS [controlled hazardous substance] from any source in the State or to any CHS facility in the State unless a driver certificate has been issued for the vehicle driver.
A "controlled hazardous substance" (CHS) is
(1) Any hazardous substance that [MDE] identifies as a controlled hazardous substance under th[e] subtitle; or
(2) Low-level nuclear waste.
Env't Article Sec. 7-201(b), Ann. Code Md. The term includes all materials designated by the U.S. Environmental Protection Agency as hazardous waste under the Resource Conservation and Recovery Act (RCRA), 40 U.S.C. Secs. 6901 et seq. Env't Article Sec. 7-201(m)(2). Although the definition of CHS is broader, CWTI/NTTC states, and MDE does not contest, that Maryland applies the certification requirement only to transporters of RCRA hazardous waste. See also COMAR 26.13.04.01.A(1) ("These regulations establish standards which apply to persons transporting hazardous waste within the State.").
The certificate is issued on evidence of "satisfactory completion of an approved training program," COMAR 26.13.04.01.F(3)(c), which must cover:
- Training in the requirements necessary to transport hazardous waste. Emphasis should be placed on the ability to verify proper DOT shipping names, hazard class and EPA waste codes. Special attention should be directed to the Maryland Hazardous Waste Manifest, other state manifest requirements, and the proper disbursement of manifest copies.
- Training in the required labeling and marking of all containers of 110 gallons or less.
- Training in Placarding. All drivers of vehicles transporting hazardous waste shall be able to appropriately placard their truck according to the DOT regulations under COMAR 11.16.01 (49 CFR 172 Subpart F).
- Training in the Federal Motor Carrier Safety Administration [sic] regulations including proper maintenance of a driver's daily log.
- Training in emergency procedures to follow in case of an accident or spill.
- Training in Maryland's hazardous waste regulations and law.
COMAR 26.13.04.01.F(4). The regulations further stipulate that a training program instructor must successfully have completed an approved instruction training program or must have five years of experience in the trucking industry, with at least two years of involvement in safe driving activities or training. COMAR 26.13.04.01.F(5). MDE may require from an operator "satisfactory completion of an approved written examination." COMAR 26.13.04.01.F(6).
The certificate must be carried in the vehicle during transportation of CHS. COMAR 26.13.04.01.F(3)(b). It is valid for three years, subject to payment of an annual $20 fee. COMAR 26.13.04.01.F(2),(3)(a).
B. Hazardous Materials To Which Maryland Requirements Apply
As summarized above, the Maryland certification requirements apply to operators of motor vehicles transporting hazardous waste and cargo tank vehicles transporting oil when those vehicles are loaded or unloaded within the State of Maryland.
An oil is a hazardous material subject to the HMTA and HMR if it meets the criteria of any HMR hazard class. Most oils that are designated as hazardous materials are designated because they meet criteria for flammability, 49 CFR 173.120(a), or combustibility, 49 CFR 173.120(b). If an oil is not flammable or combustible, does not meet the criteria for any other hazard class, and is not among a small number of individually specified hazardous materials, 49 CFR 172.101(b)(1), it is not a designated hazardous material. Numerous oils, such as lubricating and vegetable oils, are not ordinarily designated hazardous materials.
Accordingly, the Maryland oil cargo tank operator certification requirement applies to the transport of both oils that are hazardous materials and those that are not. Operator certification requirements for the transport of oils that are not hazardous materials are not subject to preemption by the HMTA. This preemption determination pertains to the oil cargo tank operator certification requirement only as it applies to the transport of oils that are hazardous materials.
In addition, the HMR do not apply to the highway transportation of oil by an intrastate carrier if that oil is not a hazardous waste, hazardous substance, flammable cryogenic liquid or marine pollutant. 49 CFR 171.1(a)(3); but see 58 FR 36920 (July 9, 1993), correction at 58 FR 38111 (July 15, 1993)(notice of rulemaking proposing to extend the HMR to intrastate highway carriage). Accordingly, this preemption determination does not apply to the transportation by intrastate highway carriers of oil not in the categories enumerated in 49 CFR 171.1(a)(3).
The Maryland statute under which the CHS vehicle operator certification requirement is enacted defines CHS broadly, to include RCRA hazardous waste, low-level nuclear waste and any other substance determined by MDE to be injurious to plant, animal or aquatic life. Env't Article Sec. 7-201(b), Ann. Code Md. As noted above, however, the certification requirement is applied only to operators of vehicles transporting RCRA hazardous waste. Thus, hereafter, the CHS vehicle certification requirement will be referred to as the hazardous waste vehicle operator certification requirement.
RCRA hazardous waste, as designated pursuant to 42 U.S.C. 6921 by the Administrator of the U.S. Environmental Protection Agency (EPA), is a hazardous material under the HMR. 49 CFR 171.8 ("Hazardous material") (as amended at 55 FR 52930, 52935 (Nov. 5, 1992)); see also 49 CFR 171.3(a) ("No person may offer for transportation or transport a hazardous waste * * * in interstate or intrastate commerce except in accordance with the requirements of [the HMR]."). Both interstate and intrastate hazardous waste transporters are subject to the HMR. 49 CFR 171.1(a).
In the preemption analysis that follows, the Maryland certification requirements are compared to HMTA requirements under the "dual compliance" and "obstacle" tests of 49 App. U.S.C. 1811(a). See Section II, below. For purposes of the dual compliance test, the hazardous waste vehicle operator certification requirement is considered as written. The obstacle test, however, looks at the requirement "as applied or enforced." 49 App. U.S.C. 1811(a)(2). Therefore, under this test, the requirement is considered only as it is applied to the transportation of RCRA hazardous waste.
C. HMTA Training and Certification Requirements for Motor Vehicle Operators
General training requirements for persons packaging, offering or transporting hazardous materials are found in the HMR at 49 CFR 172.700-.704. These requirements apply to "hazmat employees," which term includes, among others, those who "[o]perate[] a vehicle used to transport hazardous materials." 49 CFR 172.702(b), 171.8 ("Hazmat employee"). Each "hazmat employee" must receive, at least every two years, three types of training: (1) Training to provide general familiarity with the HMR and a general ability to recognize and identify hazardous materials consistent with HMR standards; (2) training specific to the hazardous material functions the employee performs; and (3) training in workplace safety and emergency response. 49 CFR 172.704(a). Required training is not further specified; instead, the regulations contemplate that hazmat employees will be trained in a manner best suited to the hazardous materials transportation functions they perform. See 57 FR 20944, 20949 (May 15, 1992)(preamble to final rule enacting 49 CFR 172.700-.704).
In addition, operators of motor vehicles transporting hazardous materials must be trained in accordance with modal-specific requirements of 49 CFR 177.816. Training subjects include vehicle inspection and operation; requirements pertaining to attendance, parking, smoking, routing and incident reporting; and loading and unloading. 49 CFR 177.816(a). Cargo tank operators must receive specialized training in tank emergency control features, special vehicle handling characteristics, tank loading and unloading, properties and hazards of materials transported, and tank retest and inspection requirements. 49 CFR 177.816(b). Under section 177.816, operators must be trained in applicable requirements of parts 383, 387 and 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSR), 49 CFR parts 350-399.
Part 383 specifies requirements for obtaining a Commercial Driver's License (CDL), including requirements for the tank vehicle endorsement, 49 CFR 383.119, and the hazardous materials endorsement, 49 CFR 383.121. Section 177.816(c) provides that the training requirements of sections 177.816(a) and (b) may be satisfied by compliance with the CDL requirements for the tank vehicle or hazardous materials endorsement. Sections 390.3(e)(2) and 392.1 together require operator training in all aspects of the FMCSR. They are incorporated into the HMR as well by 49 CFR 177.804, as they apply to interstate operators of motor vehicles transporting hazardous materials.
Both 49 CFR 172.704(d) and 49 CFR 177.816 require that training documentation be retained; 49 CFR 172.702(d) requires that an employer test its employees. No provision of the HMR, however, requires that evidence of training be submitted to, or that operators be tested or certified by, a governmental body. A vehicle operator may comply with 49 CFR 177.816 by passing an examination and obtaining the CDL with a tank vehicle or hazardous materials endorsement. 49 CFR 177.816(c)(1).
Nonetheless, this is an alternative means of complying with the regulation, and is not required.
II. Preemption Under the HMTA
The HMTA was enacted in 1975 to give the Department of Transportation greater authority "to protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." 49 App. U.S.C. 1801. It "replace[d] a patchwork of state and federal laws and regulations concerning hazardous materials with a scheme of uniform, national regulations." Southern Pac. Transp. Co. v. Public Serv. Comm'n, 909 F.2d 352, 353 (9th Cir. 1990).
As enacted in 1975, the HMTA preempted "any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in [the HMTA], or in a regulation issued under [the HMTA]." HMTA, Pub. L. 93-633, Sec. 112(a), 88 Stat. 2161 (1975). Congress intended this provision "to preclude a multiplicity of State regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation." S. Rep. No. 1192, 93d Cong., 2d Sess. 37 (1974).
Thereafter, DOT's Materials Transportation Bureau (MTB), predecessor of RSPA's Office of Hazardous Materials Safety, implemented HMTA preemption through the issuance of inconsistency rulings. Inconsistency rulings, while advisory in nature, were "an alternative to litigation for a determination of the relationship of Federal and State or local requirements" and also a possible "basis for an application [for] a waiver of preemption pursuant to section 112(b) of the HMTA." Inconsistency Ruling No. 2 (IR-2), 44 FR 75566, 76657 (Dec. 20, 1979).
In the 1990 amendments to the HMTA, Pub. L. 101-615 (Nov. 16, 1990), preemption under the HMTA was strengthened on the basis of the following Congressional findings:
(3) many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements,
(4) because of the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable,
(5) in order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce are necessary and desirable.
49 App. U.S.C. 1801 note. In amending the HMTA, Congress affirmed that "uniformity was the linchpin" of the statute. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991). Unless a waiver of preemption is granted by DOT, the HMTA as amended explicitly preempts "any requirement of a State or political subdivision thereof or Indian tribe" not "otherwise authorized by Federal law" if
- Compliance with both the State or political subdivision or Indian tribe requirement and any requirement of [the HMTA] or of any regulation issued under [the HMTA] is not possible,
- The State or political subdivision or Indian tribe requirement as applied or enforced creates an obstacle to the accomplishment and execution of [the HMTA] or the regulations issued under [the HMTA], or
- It is preempted under section 105(a)(4) [49 App. U.S.C. Sec. 1804(a)(4), concerning "covered subjects"] or section 105(b)
[49 U.S.C. Sec. 1804(b), concerning highway routing requirements].
49 App. U.S.C. 1811(a).
The first two paragraphs codify the "dual compliance" and "obstacle" criteria that RSPA had applied in issuing inconsistency rulings prior to the 1990 amendments to the HMTA. These criteria derive from U.S. Supreme Court preemption decisions. E.g., Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Hines v. Davidowitz, 312 U.S. 52 (1941).
The third paragraph, 49 App. U.S.C. 1811(a)(3), in conjunction with 49 App. U.S.C. 1804(a)(4), specifies five "covered subject" areas in which non-Federal requirements are given particular scrutiny:
- The designation, description, and classification of hazardous materials.
- The packing, repacking, handling, labeling, marking, and placarding of hazardous materials.
- The preparation, execution, and use of shipping documents pertaining to hazardous materials and requirements respecting the number, content, and placement of such documents.
- The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials.
- The design, manufacturing, fabrication, marking, maintenance, reconditioning, repairing, or testing of a package or container which is represented, marked, certified, or sold as qualified for use in the transportation of hazardous materials.
In these areas, a non-Federal requirement that is "not otherwise authorized by Federal law" is preempted unless it is "substantively the same" as the HMTA or HMR requirement. 49 App. U.S.C. 1811(a). To be "substantively the same," the non-Federal requirement must "conform[] in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted." 49 CFR 107.202(d).
A more limited preemption test, independent of 49 App. U.S.C. 1811(a), applies when the non-Federal requirement is being compared to FMCSR provisions incorporated into the HMR through 49 CFR 177.804. RSPA has declared that in enacting 49 CFR 177.804, it did not intend to change the preemptive effect of those FMCSR provisions incorporated. See IR-22, 52 FR 46574 (Dec. 8, 1987). The preemptive effect of FMCSR training requirements, 49 CFR 390.3(e)(2) and 392.1, is set forth at 49 CFR 390.9:
Except as otherwise specifically indicated, subchapter B of this chapter [49 CFR Parts 350-399] is not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the person subject thereto.
This standard essentially is the "dual compliance" standard. See IR-32, 55 FR 36736, 36741 (Sept. 6, 1990). Any FMSCR provision incorporated into the HMR solely through 49 CFR 177.804 therefore preempts a State or local requirement "only if compliance with both is impossible." IR-32, 55 FR at 36741.
In place of the prior process for issuing advisory inconsistency rulings, the HMTA authorizes any directly affected person to apply to the Secretary of Transportation for a preemption determination with respect to a requirement of a State, political subdivision or Indian tribe. 49 App. U.S.C. 1811(c)(1). Preemption determinations under authority of the HMTA address preemption only by the HMTA, and not by the Commerce Clause of the Constitution or federal statutes other than the HMTA. Other statutes may be relevant to determining HMTA preemption, for instance in establishing whether a non-Federal requirement is "otherwise authorized by Federal law." 49 App. U.S.C. 1804(a)(4)(A).
The Secretary of Transportation has delegated to RSPA the authority to make preemption determinations, except for those concerning highway routing, which are delegated to the Federal Highway Administration. 49 CFR 1.53(b). Under RSPA's regulations, preemption determinations are issued by RSPA's Associate Administrator for Hazardous Materials Safety. 49 CFR 107.209(a). If the HMTA preempts a requirement of a State, a political subdivision of a State or an Indian tribe, that jurisdiction may apply for a waiver of preemption under 49 CFR 107.215 through 107.227. A waiver may be granted if the Associate Administrator finds that the non-Federal requirement affords the public a level of safety equal to or greater than that afforded by the HMR, and that it does not unreasonably burden commerce. Alternatively, the jurisdiction may petition under 49 CFR 106.31 for adoption of a uniform Federal rule.
Preemption determinations under the HMTA are consistent with the principles and policy set forth in Executive Order No. 12,612 ("Federalism"), 52 FR 41685 (Oct. 30, 1987). Section 4(a) of that Executive Order authorizes preemption of State laws only when a statute contains an express preemption provision, there is other clear evidence of Congressional intent to preempt, or the exercise of State authority directly conflicts with the exercise of Federal authority. The HMTA contains an express preemption provision, implemented through RSPA regulations.
III. The CWTI/NTTC Application and Public Comment
A. The CWTI/NTTC Application
The CWTI/NTTC application asserts that the Maryland driver certification requirements duplicate and conflict with Federal standards. It observes that 49 CFR Part 383 of the FMCSR requires a driver to have a CDL with a cargo tank endorsement when operating a cargo tank, and a CDL with a hazardous materials endorsement when transporting hazardous materials. It notes that the HMR do not impose training certification requirements beyond the employer's duty, set forth at 49 CFR 172.704(d)(5), to maintain training records.
Citing 49 CFR 172.701, CWTI/NTTC object to the requirement that operators not domiciled in Maryland be certified. This regulation authorizes a State to impose training requirements more strict than HMR requirements only on motor vehicle operators domiciled in that State. They refer to the preamble to the final rule enacting 49 CFR 172.700- .704, 57 FR 20944, 20947 (May 15, 1992), which states that 49 CFR 172.701 reflects RSPA's recognition of the "traditional regulation by States of their own resident drivers * * * through drivers' licensing requirements and procedures." CWTI/NTTC appear to argue that RSPA intended to preserve State authority to regulate its own drivers only when that authority is exercised by the State agency traditionally responsible for driver licensing. If section 172.701 is read in this way, CWTI/NTTC imply, it would authorize regulation only by the Maryland Motor Vehicle Administration, the agency that issues the CDL, and not by MDE.
The CWTI/NTTC application maintains that the Maryland requirements violate both the "dual compliance" test and the "obstacle" test under 49 App. U.S.C. 1811(a). The "dual compliance" test, CWTI/NTTC assert, is violated in two respects:
- A driver cannot comply with both the Maryland requirements and 49 CFR 383.21(a), which prohibits a commercial motor vehicle operator from having more than one driver's license at any time.
- A non-domiciled driver cannot comply with both the Maryland requirements and 49 CFR 172.701(b), which prohibits the application of State training requirements stricter than those of the HMR to non-domiciled drivers.
According to CWTI/NTTC, the Maryland requirements also are "obstacles" to accomplishing the purposes of the HMR because transporters' burden of complying with paperwork and training requirements of a potentially large number of States, particularly burdens of pre-registering for and attending State-administered tests, would be significant. CWTI/NTTC also suggest that the certification requirements for hazardous waste transporters should be reviewed under 49 CFR 171.3(c), which strictly limits the ability of States to regulate hazardous waste differently than do the HMR.
Finally, CWTI/NTTC assert that the Maryland requirements are not "otherwise authorized by Federal law." See 49 App. U.S.C. 1811(a).
B. Comments Supporting Preemption
RSPA has received comments supporting preemption of one or both operator certification requirements from ten additional parties, including one oil transporter, one hazardous materials transporter, six hazardous waste transporters, an environmental services firm and the Hazardous Materials Advisory Council (HMAC), an association representing the hazardous materials transportation industry.
With respect to Maryland's oil cargo tank operator certification, COMAR 26.10.01.16.D, Amoco Oil Company, Nortru, Inc., Heritage Transport, Inc. and Laidlaw Environmental Services Inc. share the view of CWTI/NTTC that the Maryland requirements duplicate the HMR and the CDL hazardous materials endorsement. Nortru asks how changes in Federal requirements would be incorporated into the substantive requirements of Maryland's certification process. Amoco, Nortru and Heritage Transport emphasize the administrative burden that could result from a determination that Maryland's certification requirements were not preempted. They assert that these burdens, multiplied by the number of States imposing separate requirements, would include paperwork burdens, the difficulty of maintaining a current knowledge of changing State requirements, and lost business opportunities and delays from failing to obtain certifications before entering Maryland. Nortru and HMAC join CWTI/NTTC in citing 49 CFR 172.701(a), which allows a State to impose training requirements more strict than those of the HMR only on drivers domiciled in that State.
Regarding Maryland's hazardous waste vehicle operator certification, COMAR 26.13.04.01.F, commenters' arguments mirror those for the oil cargo tank operator certification. Nortru, Environmental Transport, Inc., McCutcheon Enterprises, Inc., Dart Trucking Company, Inc., Heritage Transport, Laidlaw and Custom Environmental Transport, Inc. charge that the certification duplicates the HMR and the CDL hazardous materials endorsement. Nortru, Environmental Transport and Custom Environmental Transport assert that the certification requirement fails to address how changes in Federal requirements will affect the validity of existing certificates, or how such changes are to be incorporated into revised training programs. Nortru, Environmental Transport, McCutcheon, Heritage Transport, Custom Environmental Transport and Eldredge, Inc. claim administrative burdens similar to those claimed for the oil cargo tank operator certification. Nortru and HMAC, again, point to the 49 CFR 172.701(a) prohibition on imposing requirements stricter than the HMR on non-domiciled drivers. HMAC argues that this conflict results in a violation of the dual compliance test. Eldredge and Dart Trucking, concurring with CWTI/NTTC, assert that the 49 CFR 383.21 prohibition against multiple licenses makes dual compliance impossible.
C. Comments Opposing Preemption
MDE has filed comments opposing preemption of the oil cargo tank operator certification requirement. It takes no position on preemption of the hazardous waste vehicle operator certification requirement.
MDE does not agree that the oil cargo tank operator certification requirement violates the 49 CFR 383.21 prohibition against multiple licenses. It maintains that the driver's certification is directed to ensuring not the safe transport of oil, but its safe transfer, and that the certificate is not a driver's license within the meaning of 49 CFR 383.21. It argues that the Maryland oil cargo tank operator certification program is consistent with the training scheme of 49 CFR 172.700-.704, which sets a performance standard but does not stipulate specific training elements. In particular, it points to 49 CFR 172.702(c), which encourages training by "public sources." In addition, it notes correctly that the CDL hazardous materials endorsement is required only for the transport of placarded shipments, and that not all oil movements require placards. (For example, oil that is a hazardous waste, but that does not meet the criteria for any other hazard class, is a Class 9 hazardous material not required to be placarded. 49 CFR 172.504(f)(9).) Transportation of non-placarded oil therefore does not require a hazmat endorsement and accordingly, MDE concludes, there is no duplication of CDL requirements.
Finally, MDE argues that the oil cargo tank operator certification requirement is "otherwise authorized by Federal law," and thus protected from preemption under 49 App. U.S.C. 1811(a). It finds this authority under sections 102 and 104 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1252(a) and 1254(a)(1). According to MDE, these sections empower States to institute training requirements directed to preventing and reducing water pollution. MDE also states that EPA approved Maryland's underground storage tank program under the Resource Conservation and Recovery Act (RCRA) Subtitle I, 42 U.S.C. 6991 et seq., in part on the basis of the existence of the certification requirement.
MassDEP asserts that a State's ability to require documentation of driver training is fundamental to effectively regulating hazardous waste transporters. It also refers to ongoing proceedings under 49 App. U.S.C. 1819, under which a working group, formed in part of State representatives, has recommended uniform forms and procedures for State registration and permitting of hazardous materials transporters. The recommendations have been transmitted to the Secretary of Transportation, and may form the basis for Department of Transportation regulations. MassDEP suggests that a determination that the Maryland requirement to document training is preempted would undermine both State regulatory efforts and the working group process. It requests that preemption be considered only to the extent that Maryland requires non-domiciled operators to come into the State for certification.
D. Rebuttal Comments
In rebuttal, CWTI/NTTC reiterate their contention that the Maryland requirements violate both the 49 CFR 172.701(a) prohibition on the application of stricter State training requirements to non-domiciled drivers and the "one driver/one license" rule of 49 CFR 383.21(a). They concur with Nortru, Environmental Transport Group and Custom Environmental Transport that delays inherent in the certification process will cause lost business opportunities.
IV. Discussion
The Maryland regulations under examination concern driver training and certification, and maintenance of training records. None of these is a "covered subject" listed in 49 App. U.S.C. 1804(a)(4)(B). Accordingly, the "substantively the same" preemption standard of 49 App. U.S.C. 1804(a)(4)(A) and 1811(a)(3) does not apply. Rather, the Maryland regulations are preempted if:
(1) compliance with both the State * * * requirement and any requirement of [the HMTA or the HMR] is not possible
[or]
(2) the State * * * requirement as applied or enforced creates an obstacle to the accomplishment and execution of [the HMTA or the HMR].
49 App. U.S.C. 1811(a). Both standards, the "dual compliance" and the "obstacle" standard, are employed to determine the preemptive effect of 49 CFR 172.700-.704 and 177.816. In considering the preemptive effect of 49 CFR 390.3(e)(2) and 392.1, however, only the dual compliance test applies. As discussed in section II, above, these provisions, due to their incorporation into the HMR through 49 CFR 177.804, have a narrower preemptive effect than do other HMR provisions.
A. The "Dual Compliance" Test
HMR training requirements for motor vehicle operators appear at 49 CFR 172.700-.704 and 177.816 and, through incorporation, at 49 CFR 390.3(e)(2) and 392.1. Each of these requirements specifies training in aspects of motor vehicle operation when hazardous materials are being transported. Sections 172.702(d), 172.704 and 177.816 require that operators be tested and records of training be maintained. To the extent that the Maryland regulations impose training requirements different from those of the HMR, they are additive. Neither CWTI/NTTC nor any other commenter has suggested that an operator cannot comply with both HMR training requirements and the applicable Maryland certification requirements.
CWTI/NTTC and other commenters do assert, however, that transporters cannot comply with both the Maryland requirements and certain other HMR provisions, namely 49 CFR 172.701 and 383.21(a). The arguments advanced, however, are not persuasive.
Section 172.701 prohibits States from imposing on non-domiciled operators training requirements stricter than those of the HMR. The fact that the regulation is a prohibition on what a State may do means that it cannot create a dual compliance problem for an operator. The dual compliance standard ensures that the regulated community is not put in the position where a non-Federal jurisdiction commands it to do an act that the HMR forbid, or, conversely, where the HMR require an act that the non-Federal jurisdiction forbids. For example, a transporter could not comply with a State requirement to placard a vehicle not carrying hazardous materials without violating 49 App. U.S.C. 1804(e)(2) and 49 CFR 171.2(f)(2), which prohibit representing that a hazardous material is present in a motor vehicle when it is not. See also 49 CFR 171.502(a). Because 49 CFR 172.701 is addressed solely to the State as a regulator, it imposes no duty on an operator, and an operator could not be found in violation of it. As discussed below, 49 CFR 172.701 is relevant to whether the Maryland requirements are an "obstacle" to accomplishing the purposes of the HMTA. It does not, however, present a dual compliance problem.
Section 383.21(a) provides that no operator of a commercial motor vehicle "shall at any time have more than one driver's license." Whether compliance with both this regulation and the Maryland certification requirement is impossible hinges on whether the Maryland operator's certificate is a "driver's license" within the meaning of the regulation. The short answer to the claim, however, is that it is not within the scope of HMTA preemption. Part 383, unlike Parts 390 through 397 of the FMCSR, is not incorporated into the HMR. See 49 CFR 177.804. Accordingly, Part 383 is not a regulation "issued under" the HMTA within the meaning of 49 App. U.S.C. 1811(a)(1), and cannot be the basis for a determination of preemption under the statute.
B. The "Obstacle" Test
While neither operator certification requirement fails the dual compliance test, either requirement nevertheless is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the HMTA. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d at 1580. The "full purposes and objectives" of the HMTA are, foremost, furthering safe hazardous materials transportation and establishing a uniform system of regulation that, by reducing confusion and promoting compliance, contributes to enhanced safety.
As noted in section I.B, above, we consider the oil cargo tank operator certification requirement only as it applies to transportation of oil that is a hazardous material under the HMTA. The HMTA does not preempt Maryland's application of the regulation to the transportation of oil that is not a designated hazardous material. In addition, in determining whether the certification requirements are an "obstacle," we consider them "as enforced and applied." 49 App. U.S.C. 1811(a)(2). Therefore, we consider the hazardous waste vehicle operator certification requirement with respect to the transportation of RCRA- designated hazardous waste only. See section I.B, above.
When a non-Federal requirement differs from the HMR, RSPA must determine whether that difference is an obstacle to the statutory purposes and objectives. The degree to which a requirement may differ from the HMR before it becomes an obstacle depends on the subject matter of the requirement. With respect to certain areas identified in the HMTA, namely, the "covered subjects" of 49 App. U.S.C. 1804(a)(4)(B), uniformity is paramount and no material deviation is permitted. 49 App. U.S.C. 1811(a). In other areas, RSPA must determine the necessary degree of uniformity in light of existing statutory and regulatory language.
In the area of training, the HMR already have established the extent to which States may regulate differently. Under 49 CFR 172.701, a State may impose training requirements more strict than those of the HMR only if those requirements:
- Do not conflict with the training requirements in [49 CFR part 172, Subpart H and part 177]; and
- Apply only to drivers domiciled in that State.
The authority granted to States to impose stricter requirements on their domiciled operators "recognizes the traditional regulation by States of their own resident drivers." 57 FR at 20947. It recognizes as well that were States permitted to impose stricter requirements on non-resident operators, operators potentially would be subject to numerous sets of training requirements, with resulting confusion, cost and paperwork burdens. The Federal regulation "represents an appropriate balancing of the interests of the States and the transportation industry." 57 FR at 20947. Cf. IR-26, 54 FR 16314, 16322 (Apr. 21, 1989)(considering preemption of State training requirements before promulgation of 49 CFR 172.701).
The 49 CFR 172.701 limitation on State regulatory authority over non-domiciled operators pertains only to State "training requirements." The term "training," as defined at 49 CFR 172.700(b), means:
A systematic program that ensures a hazmat employee has familiarity with the general provisions of [the HMR], is able to recognize and identify hazardous materials, has knowledge of specific requirements of [the HMR] applicable to functions performed by the employee, and has knowledge of emergency response information, self-protection measures and accident prevention methods and procedures.
The two Maryland regulations, see section I.A, above, require that operators of motor vehicles transporting regulated materials, including hazardous materials, pass an examination. The examination is to ensure that the driver is trained in procedures for identifying and marking regulated materials for transportation, safely transporting regulated materials and instituting emergency procedures in the event of a spill. The regulations stipulate the required areas of training, provide for an examination to demonstrate training in those areas, and authorize issuance of a driver's certificate to identify those who satisfactorily have been trained. These are elements of a "systematic program" of "training requirements." Accordingly, the Maryland regulations, as they apply to those transporting hazardous materials, are subject to 49 CFR 172.701.
Both COMAR 26.10.01.16.D, the oil cargo tank operator certification, and COMAR 26.13.04.01.F, the hazardous waste vehicle operator certification, are stricter than the HMR. The HMR impose general and function-specific training requirements on all hazmat employees. Under 49 CFR 177.816, motor vehicle operators in particular are required to be trained in an exhaustive number of areas related to the safe transportation of hazardous materials in motor vehicles. In addition, a hazmat employer must provide for "appropriate" testing of its employees. 49 CFR 172.702(d). Unlike the Maryland regulations, however, the HMR do not condition motor vehicle operation on passing an examination administered by a governmental body. Cf. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d at 1581 (requirement to submit proof of training goes beyond HMR). In addition, COMAR 26.13.04.01.F requires hazardous waste transporters to be trained in specific areas that the HMR do not, namely, in hazardous waste transportation requirements specific to Maryland laws and regulations. The HMR do not limit the means by which a hazmat employer may train a driver, provided that training meets the standard of 49 CFR 172.700(b). Conversely, training received by the operator of a vehicle transporting hazardous waste does not comply with COMAR 26.13.04.01.F unless the instructor meets the experience requirements set forth at COMAR 26.13.04.01.F(5).
MDE suggests that the training requirements are not an obstacle to accomplishing the purposes of the HMTA because of 49 CFR 172.702(c), which states: "Training may be provided by the hazmat employer or other public or private sources." This section, however, simply encourages hazmat employers, in training their employees, to make use of any resources, public or private, that offer training meeting the requirements of the regulations. See 57 FR at 20949-50. It does not authorize States or other non-Federal entities to impose additional training obligations.
Determining the extent to which State training requirements may differ from those in the HMR before they become an obstacle to accomplishing the purposes of the HMTA is a balancing of the State's interest in ensuring the competence of drivers within its jurisdiction against the cost and administrative burdens on transporters and the confusion, reduced compliance and decreased safety that may result from a multiplicity of potentially conflicting requirements. RSPA already has performed that balancing, and the result is codified in 49 CFR 172.701. Because COMAR 26.10.01.16.D and COMAR 26.13.04.01.F are stricter than HMR training requirements, they violate 49 CFR 172.701 to the extent they apply to operators not domiciled in Maryland. Therefore, as applied to non-domiciled operators, each Maryland requirement is an obstacle to accomplishing the full objectives and purposes of the HMTA, and is preempted. As applied to operators domiciled in Maryland, COMAR 26.10.01.16.D and COMAR 26.13.04.01.F are not preempted.
V. "Otherwise Authorized by Federal Law"
The HMTA does not preempt a non-Federal requirement that is "otherwise authorized by Federal law." 49 App. U.S.C. 1811(a). MDE asserts that its oil cargo tank operator certification requirement is authorized by sections 102 and 104 of the FWPCA, 33 U.S.C. 1252(a) and 1254(a)(1), and RCRA Subtitle I, 42 U.S.C. 6991 et seq.
The FWPCA sections cited by MDE do not support its argument. In relevant part, these read as follows:
The [EPA] Administrator shall, after careful investigation, and in cooperation with other Federal agencies, State water pollution control agencies, interstate agencies, and the municipalities and industries involved, prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters. 33 U.S.C. 1252(a).
The [EPA] Administrator shall establish national programs for the prevention, reduction, and elimination of pollution and as part of such programs shall--
(1) in cooperation with other Federal, State, and local agencies, conduct and promote the coordination and acceleration of research, investigations, experiments, training, demonstrations, surveys, and studies relating to the causes, effects, extent, prevention, reduction, and elimination of pollution.
33 U.S.C. 1254(a)(1).
By their clear terms, these statutes delegate general authority to the EPA Administrator to develop programs and undertake research to protect surface and groundwater quality. While the Administrator is directed to cooperate with the States in doing so, no regulatory authority is conferred on the States. MDE argues as well that RCRA Subtitle I, regulating underground oil storage tanks, authorizes the oil cargo tank operator certification requirement of COMAR 26.10.01.16.D. Although Subtitle I regulates underground storage tank systems, MDE states, "it is the vehicle operator who transfers the product into and out of these systems." According to MDE, "EPA's approval of the State of Maryland's underground storage tank (UST) program was in part based on its oil vehicle operator's certification requirements for the safe transfer of oil." The elements that a State UST program must contain to qualify for EPA approval are set forth at 42 U.S.C. 6991c(a); these elements are elaborated in EPA regulations at 40 CFR part 281. The elements do not include, and the regulations do not mention, regulation of oil transporters. MDE submits no evidence that Maryland's certification requirement was necessary for EPA approval of the State's UST program.
RCRA Subtitle I, at 42 U.S.C. 6991g, provides:
Nothing in this subtitle shall preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance respecting underground storage tanks that is more stringent than a regulation, requirement, or standard of performance in effect under this subtitle.
See also 40 CFR 281.12(a)(3). The fact that Subtitle I does not prohibit a State from imposing more stringent regulations does not protect those regulations from preemption under the HMTA. Indeed, 40 CFR 281.12(a)(3)(ii) states:
Where an approved state program has a greater scope of coverage than required by federal law, the additional coverage is not part of the federally-approved program.
See also PD-1, 57 FR 58848, 58855 (Dec. 11, 1992) (ruling similarly on nearly identical language in RCRA Subtitle C, 42 U.S.C. 6929).
In summary, the Maryland oil cargo tank operator certification requirement is not "otherwise authorized by Federal law" within the meaning of 49 App. U.S.C. 1811(a).
VI. Ruling
For the reasons set forth above, RSPA finds that 49 App. U.S.C. 1811(a)(2) preempts Maryland regulations COMAR 26.10.01.16.D and COMAR 26.13.04.01.F, requiring certification of operators of motor vehicles loading or unloading hazardous materials in Maryland, as they apply to vehicle operators not domiciled in Maryland. Specifically, these requirements are stricter than Federal operator training requirements and therefore are obstacles to accomplishing the full purposes and objectives of the HMTA. As applied to vehicle operators domiciled in Maryland, the requirements are not preempted.
VII. Petition for Reconsideration/Judicial Review
In accordance with 49 CFR 107.211(a), "[a]ny person aggrieved" by RSPA's decision on the NTTC/CWTI application may file a petition for reconsideration within 20 days of service of the decision. Any party to this proceeding may seek review of RSPA's decision "by the appropriate district court of the United States * * * within 60 days after such decision becomes final." 49 App. U.S.C. 1811(e).
This decision will become RSPA's final decision 20 days after service if no petition for reconsideration is filed within that time. The filing of a petition for reconsideration is not a prerequisite to seeking judicial review of this decision under 49 App. U.S.C. 1811(e).
If a petition for reconsideration is filed within 20 days of service, the action by RSPA's Associate Administrator for Hazardous Materials Safety on the petition for reconsideration will constitute final agency action. 49 CFR 107.211(d).
Issued in Washington, DC on May 24, 1994.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 94-13326 Filed 6-2-94; 8:45 am]
BILLING CODE 4910-60-P
![[Header] PHMSA - U.S. Department of Transportation - Pipeline and Hazardous materials Safety Adminis](https://webarchive.library.unt.edu/web/20090510224745im_/http://www.phmsa.dot.gov/staticfiles/PHMSA/SiteHeaders/Images/PHMSASiteHeader.gif)
