[59 FR 6186]
[Federal Register: February 9, 1994]
Part IV
Department of Transportation
Research and Special Programs Administration
Michigan Marking Requirements for Vehicles Transporting Hazardous and Liquid Industrial Wastes; Notice
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Preemption Determination No. PD-6(R); Docket No. PDA-8(R)]
Michigan Marking Requirements for Vehicles Transporting Hazardous and Liquid Industrial Wastes
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Administrative determination that Michigan marking requirements for vehicles licensed to carry hazardous and liquid industrial wastes are preempted by the Hazardous Materials Transportation Act.
APPLICANT: Chemical Waste Transportation Institute, on behalf of the National Solid Wastes Management Association.
STATE LAWS AFFECTED: Michigan Compiled Laws Sec. 323.277(1); Michigan Administrative Code 299.9406(6).
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: Michigan Compiled Laws Sec. 323.277(1) and Michigan Administrative Code 299.9406(6), requiring the marking of motor vehicles used to transport, respectively, "liquid industrial waste" and "hazardous waste," are preempted by 49 App. U.S.C. 1811(a)(3). These marking requirements are not "substantively the same as" Federal marking, labeling and placarding requirements. As applied to vehicles used to transport only liquid industrial wastes that are not hazardous materials, the marking requirement at Sec. 323.277(1) is preempted as an obstacle to accomplishing the purposes of the HMTA.
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 January 4, 1993, the Chemical Waste Transportation Institute (CWTI), an institute of the National Solid Wastes Management Association, applied for a determination of preemption pursuant to 49 CFR 107.203. The CWTI application seeks an administrative determination that State of Michigan requirements to mark motor vehicles used to transport "hazardous waste" and "liquid industrial waste" are preempted by the HMTA.
On January 26, 1993, RSPA published a Public Notice and Invitation to Comment, providing for comments until March 31, 1993 and rebuttal comments until June 4, 1993. 58 FR 6170. The Michigan Department of Natural Resources (DNR) submitted comments opposing preemption; one waste industry association and two waste transporters submitted comments supporting preemption. CWTI submitted rebuttal comments responding to those of the DNR.
A. Michigan Requirements for Marking Waste-Hauling Vehicles
The two provisions of Michigan law for which CWTI seeks a preemption determination impose marking requirements on motor vehicles used to transport "liquid industrial waste" and "hazardous waste."
Michigan Compiled Laws, Secs. 323.271 through 323.280 (cited by CWTI and commenters as Michigan Act 136, Public Acts of 1969), regulates the transportation and disposal of "liquid industrial waste." "Liquid industrial waste" is defined as:
Any liquid waste, other than unpolluted water, which is produced by or incident to or results from an industrial or commercial activity or the conduct of any enterprise.
Mich. Comp. Laws Ann. Sec. 323.271(b) (West Supp. 1993). The statute requires any person removing liquid industrial waste from the premises of another to be licensed and bonded. Records of waste removal and disposal must be maintained, and vehicle operation and waste disposal must accord with applicable provisions of State law.
The first State requirement for which CWTI seeks a finding of preemption, Michigan Compiled Laws Sec. 323.277(1), requires the marking of motor vehicles used to transport liquid industrial waste. On each side of the vehicle, the words "licensed industrial waste hauling vehicle" must be "painted * * * in letters not less than 2 inches high." These words must be followed by the vehicle license number and a seal furnished by the State designating the year for which the license is issued. Apparently, the lettering is to remain on the truck at all times it is licensed to transport liquid industrial waste, whether or not it actually is carrying the regulated waste.
Hazardous waste transportation within the State of Michigan is governed by Michigan Administrative Code Part 299.9400 (1991), promulgated pursuant to Michigan Compiled Laws, Secs. 299.501 through 299.551 (cited by CWTI and commenters as Michigan Act 64, Public Act of 1979).
The definition of "hazardous waste" at Sec. 299.504(3) of the State statute essentially mirrors the definition under the Federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et seq. See 42 U.S.C. 6903(5), (27). As under RCRA, see 42 U.S.C. 6921(a), 40 CFR 261.20, 261.30, "hazardous waste" under Michigan law consists of "characteristic" wastes, i.e., those meeting a criterion of ignitability, corrosivity, reactivity or toxicity, Mich. Admin. Code 299.9203(1)(a), 299.9212, and "listed" wastes designated pursuant to an administrative finding of potential hazard, Mich. Admin. Code 299.9203(1)(b), 299.9213, 299.9214. State regulations provide that any federally designated RCRA hazardous waste is a hazardous waste under Michigan law. Mich. Admin. Code 299.9208(1), 299.9209(1). Thus, while the director of the DNR may designate additional hazardous wastes, Mich. Admin. Code 299.9209(2), the regulations in question apply, at a minimum, to all RCRA hazardous wastes.
Michigan Administrative Code part 299.9400 imposes business and vehicle licensing, recordkeeping and operational requirements on hazardous waste transporters. The second State requirement for which CWTI seeks a finding of preemption, Sec. 299.9406(6), requires the following marking on each side of the "waste-hauling portion of the vehicle":
The words "Hazardous Waste-Hauling Vehicle" followed by the company name, city, and state in clearly legible letters not less than 5 centimeters high. * * * A transporter may remove this lettering for uses other than hazardous waste treatment [sic]1 if such alternate uses are identified in the transporter's business or vehicle license.
\1\ CWTI advises that, according to the DNR, "treatment" should read "transportation." 58 FR 6170 n. 6. Mich. Admin. Code 299.9406(6). The lettering is to remain "visible" while the vehicle is licensed. Id.
The two marking requirements apply, respectively, to motor vehicles licensed to haul liquid industrial waste or hazardous waste, as defined under Michigan law. The requirements apply to vehicles used for both bulk and non-bulk transportation, as those terms are defined in the HMR. See 49 CFR 171.8. With the limited exception in Sec. 299.9406(6) quoted above, they apply both when materials other than waste are being transported in the licensed vehicle and when the vehicle is empty.
B. HMTA Requirements for Motor Vehicle Marking and Placarding
RCRA hazardous wastes, as designated pursuant to 42 U.S.C. 6921 by the Administrator of the U.S. Environmental Protection Agency (EPA), are hazardous materials 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).
Under the HMR, if a hazardous waste meets the definition of any of the hazard-specific classes 1 through 8, it is subject to the marking, labeling and placarding requirements applicable to that class. 49 CFR 172.101(c)(12), 173.2a. If the waste does not meet the definition of one of those classes, it is designated as a Class 9 hazardous material. 49 CFR 173.140(b). Different vehicle marking and placarding requirements apply depending on the hazard class of the waste, the quantity, and whether it is transported in bulk or non-bulk packagings.
The general marking requirements for bulk packagings in which hazardous waste is transported appear at 49 CFR 172.302. Under this section, only the identification number of the waste need be marked on the packaging; if the packaging is used under the terms of an exemption, the exemption number must be marked as well. 49 CFR 172.302(a), (c); 172.504(f)(9). The packaging must remain marked until it has been cleaned of residue and purged of vapors, or refilled with a material requiring different markings, at which time the markings for the waste must be removed. 49 CFR 172.302(d). If the waste is radioactive, poisonous by inhalation, explosive or an elevated temperature material, additional marking requirements apply. 49 CFR 172.310, 172.313, 172,320, 172.325. Labeling requirements apply to certain smaller bulk packagings. 49 CFR 172.400(a).
A vehicle transporting hazardous waste in bulk must display placards designated in the HMR for the hazard class(es) of the waste. 49 CFR 172.504. The vehicle must remain placarded until it is cleaned of residue and purged of vapors, or refilled with a material requiring different or no placards, at which time the placards for the waste must be removed. 49 CFR 172.514(b). If the waste is a Class 9 hazardous material in domestic transportation, the vehicle need not be placarded. 49 CFR 172.504(f)(9). The required waste identification number may, however, be displayed on a placard rather than as a marking. 49 CFR 172.336(b).
Non-bulk packages of hazardous waste are subject to a number of requirements for marking, 49 CFR 172.301, 172.310, 172.312, 172.313, 172.316, 172.320, 172.324, 172.325, and labeling, id., 172.400, 172.402, 172.403, 172.404. No marking requirements, however, apply to the motor vehicle that transports them. Rather, the vehicle must display placards designated for the hazard class(es) of the waste being transported. 49 CFR 172.504(a). Exceptions from placarding may apply if the waste is an infectious substance, 49 CFR 172.500(b)(1), or if there is less than 454 kilograms (1001 pounds) of it, 49 CFR 172.504(c). Under certain circumstances, a "Dangerous" placard may be used in place of two or more hazard-specific placards. 49 CFR 172.504(b). If the waste is a Class 9 material in domestic transportation, the vehicle need not be placarded. 49 CFR 172.504(f)(9).
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, Public Law 93-633, section 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, Public Law 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
(1) 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,
(2) 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
(3) It is preempted under section 105(a)(4) [49 App. U.S.C. 1804(a)(4), concerning "covered subjects"] or section 105(b) [49 U.S.C. 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), refers to 49 App. U.S.C. 1804(a)(4), which 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 any of 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. 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).
HMTA preemption of non-Federal waste transportation regulation is further implemented through 49 CFR 171.3(c):
With regard to hazardous waste subject to [the HMR], any requirement of a state or its political subdivision is inconsistent with [the HMR] if it applies because that material is a waste material and applies differently from or in addition to the requirements of [the HMR] concerning: (1) Packaging, marking, labeling, or placarding; (2) Format or contents of discharge reports (except immediate reports for emergency response); and (3) Format or contents of shipping papers, including hazardous waste manifests.
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 a requirement of a State, a political subdivision of a State or an Indian tribe is preempted, 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, which RSPA has implemented through its regulations.
III. The CWTI Application and Public Comment
A. The CWTI Application
CWTI states that hazardous materials vehicle marking is a "covered subject" under 49 App. U.S.C. 1804(a)(4)(B)(ii). State regulations pertaining to marking, CWTI continues, must be "substantively the same" as those of the HMR or they are preempted. CWTI then characterizes the Michigan requirements as marking requirements. It contends that they are not substantively the same as the Federal requirements, and therefore are preempted. CWTI supports its argument by citing 49 CFR 171.3(c)(1), quoted in Section II, above. This section prohibits regulation of waste materials as hazardous waste differently than the HMR with respect to, among other categories, marking, labeling and placarding.
CWTI suggests that the required vehicle markings will confuse the public and emergency responders outside of Michigan. It contends that vehicles not carrying hazardous or liquid industrial waste but marked according to Michigan law are more likely to be, and have been, denied entry to non-hazardous waste disposal facilities, resulting either in a de facto vehicle dedication or in more trips, more mileage and a correspondingly greater public risk. CWTI asserts that by complying with the Michigan requirement to mark even trucks that are empty, transporters must violate the HMTA prohibition on representing that a hazardous material is present when it is not. See 49 App. U.S.C. 1804(e); see also 49 CFR 171.2(f)(2).
Finally, CWTI asserts that the Michigan requirements are not "otherwise authorized by Federal law," 49 App. U.S.C. 1811(a), by RCRA or any other Federal statute. B. Comments Supporting Preemption
Comments supporting preemption were received from three additional parties. The Hazardous Materials Advisory Council (HMAC), an organization representing "shippers, carriers of all modes, container manufacturers and reconditioners, emergency response and waste clean-up companies," echoed CWTI's arguments that the Michigan requirements violate both 49 CFR 171.3(c)(1), which prohibits regulation of wastes as wastes in a manner different from the HMR, and 171.2(f)(2), which prohibits representing that hazardous materials are present when they are not.
HMAC also cites 49 App. U.S.C. 1819, which establishes a working group to recommend uniform forms and procedures for State registration and permitting of hazardous materials transporters. The recommendations, when transmitted to the Secretary of Transportation, will form the basis for possible Department of Transportation regulations. After the effective date of any promulgated regulations, no State shall enforce any requirement relating to that subject matter unless it is "the same as" the regulations. 49 App. U.S.C. 1820(e). HMAC states that it is a non-voting member of the working group, and that the group has not contemplated regulations such as the Michigan marking requirements.
Two private waste haulers, Price Trucking Corporation and Enmanco, state that they have been turned away from, or been delayed at, non- hazardous waste disposal facilities due to the markings on their trucks, and that those markings have caused confusion outside of Michigan. Enmanco suggests that the markings are imprecise and cause confusion as to what the truck is carrying. Price Trucking joins CWTI and HMAC in arguing that compliance with the Michigan requirements brings a vehicle into violation of 49 CFR 171.2(f)(2).
C. Comments Opposing Preemption
The Michigan DNR filed comments opposing preemption of its marking requirements.
The DNR asserts that the application filed by CWTI is procedurally defective, in that it fails adequately to:
- State how CWTI is affected by the Michigan requirements.
- Set forth the text of the Michigan requirements for which a finding of preemption is sought.
- Specify the HMTA or HMR provisions with which the Michigan requirements are to be compared.
- Explain why the Michigan requirements should be preempted.
See 49 CFR 107.203(b)(2), (3), (4), (5).
On the merits of the determination, the DNR contends that the marking requirements serve important public interests. First, the markings warn emergency responders and the public in the event of an accident. The DNR asserts that its requirements are particularly warranted for vehicles transporting Class 9 hazardous wastes, or hazardous wastes in non-bulk containers. These vehicles are not required to be placarded under the HMR, resulting, according to the DNR, in a situation that is "inimical to the public health, safety and welfare, and the public interest." Without the markings required under Michigan law, the DNR argues, a vehicle transporting Class 9 or non- bulk wastes will inadequately communicate its hazards to those arriving at an accident scene.
The DNR further suggests that the markings will alert the public to the dual activities of those waste transport vehicles that also are used to carry gravel, topsoil, sand, food or other commodities. They will allow those engaging transportation services better to determine the past uses of a vehicle, and will assist sanitary landfills in preventing the receipt of hazardous wastes.
The DNR asserts that there is no conflict between State and Federal regulation, as the Department of Transportation "has chosen not to fill this important regulatory void." It states that the benefits of the Michigan marking requirements outweigh a minimal regulatory burden.
D. Rebuttal Comments
In rebuttal, CWTI responds that Preemption Determination No. 2 (PD- 2(R)), 58 FR 11176 (Feb. 23, 1993), has affirmed the CWTI's "standing" to file applications for preemption determinations on behalf of its members. In that ruling, concerning a State of Illinois hazardous waste manifest at variance with the uniform Federal manifest, RSPA, according to CWTI, affirmed its broad reading of the "directly affected" standard for who may apply for a preemption determination. CWTI also states that in its application it cited the State requirements for which it seeks a finding of preemption, that the cited requirements were appended to the application, and that a "plain reading" indicates the HMR provisions to which comparison is to be made, namely, those governing marking, labeling and placarding.
CWTI disputes the DNR claim that the required markings convey accurate hazard warning information. Specifically, it suggests that the information will be inaccurate when the vehicle is empty or contains something other than the wastes indicated by the marking. It notes that while vehicles transporting Class 9 hazardous materials are not required to be placarded under the HMR, not all wastes covered by the marking requirements are Class 9 materials. It states that the DNR's purported concerns about cross-contamination are not relevant to vehicles used to transport hazardous wastes in non-bulk packagings. Finally, CWTI contends that Michigan's, and indeed RSPA's, judgments as to the adequacy of the Federal vehicle marking system are not pertinent to determining preemption in a "covered subject" area. RSPA's determination, CWTI asserts, is limited to "whether the non-federal requirement is 'substantively the same as' the federal standard." Finally, CWTI reiterates its position that neither RCRA nor its implementing regulations "otherwise authorizes" the Michigan requirements at issue.
IV. Discussion
A. Procedural Issues
The DNR asserts that CWTI, contrary to 49 CFR 107.203(b)(5), has not adequately stated how it is affected by the Michigan marking requirements for which it seeks a finding of preemption. In its application, CWTI states that it is
A not-for-profit association that represents approximately 2,000 waste services companies throughout the United States and Canada. Members of the Institute are commercial firms specializing in the transportation of hazardous waste, by truck and rail, from its point of generation to its management destination. Our members are both private and for hire carriers that operate in interstate and intrastate commerce, including points to and from and through Michigan.
This averment is sufficient to inform RSPA and interested members of the public of how CWTI is affected by the Michigan requirements. Beyond considering simply whether petitioner has stated its interest, however, it is appropriate to address the DNR's implied claim: That CWTI lacks standing to apply for the preemption determination.
The HMTA, as originally enacted, provided for the preemption of non-Federal requirements that were "inconsistent" with the HMTA or the HMR. HMTA, Public Law 93-633, section 112(a), 88 Stat. 2161 (1975). Preemption questions were decided by RSPA, in accordance with its regulations, through a process that resulted in the issuance of inconsistency rulings. The 1990 amendments to the HMTA elevated the advisory inconsistency ruling to that of a "binding administrative process for determining whether State and local requirements are preempted." H.R. Rep. No. 444, 101st Cong., 2d Sess. 1 (1990).
As amended, the HMTA provides: Any person, including a State or political subdivision thereof or Indian tribe, directly affected by any requirement of a State or political subdivision or Indian tribe, may apply to the Secretary, in accordance with regulations prescribed by the Secretary, for a determination of whether that requirement is preempted by [the HMTA].
49 App. U.S.C. 1811(c). The HMTA standing test, then, is that a person be "directly affected" by a non-Federal requirement for which it seeks a preemption determination. This provision codified and amended RSPA's prior practice in considering applications for inconsistency rulings, in which RSPA interpreted the standing requirement broadly.
Absent dispute with the facts of CWTI's averment, it is established that CWTI's members include those who transport hazardous waste in or through Michigan by motor vehicle. As CWTI notes, in PD-2(R) RSPA found that CWTI had standing on behalf of its members to challenge Illinois' enforcement of a requirement to use a State hazardous waste manifest at variance with that countenanced by the HMR. 58 FR at 11181-82. CWTI has standing sufficient for the present application.
The DNR claims that CWTI has not set forth the text of the Michigan requirements for which it seeks a finding of preemption. CWTI's application cites to the two provisions of Michigan law containing the marking requirements at issue, 58 FR at 6170 n. 4 & 5, with the text of those provisions attached. The application as submitted did not include the full text of Michigan statutes and rules (such as definitions and jurisdictional sections) necessary to understand the scope of the two provisions. For RSPA's purposes, this deficiency was remedied by CWTI in response to a July 7, 1993 letter from the RSPA Office of Chief Counsel to CWTI, a copy of which was sent by certified mail to the DNR. Were an interested party prejudiced in its ability to comment by the absence from the docket of these supporting materials, a suitable procedural remedy might be in order. The DNR has not alleged prejudice to itself from CWTI's failure to include these materials with its application, and indeed cannot reasonably claim to lack access to its own statutes and administrative rules. Accordingly, CWTI's compliance with 49 CFR 107.203(b)(2) is adequate.
The DNR argues that the CWTI application did not "specify each requirement" of the HMR with which CWTI seeks the Michigan marking requirements to be compared. See 49 CFR 107.203(b)(3). The application did not include citations to specific HMR provisions. It did, however, state that the HMR requirements at issue were, for instance, those "in certain covered subject areas including the 'marking' of hazardous materials." Marking, labeling and placarding requirements are set forth concisely in the HMR at 49 CFR part 172 subparts D, E and F, respectively. In addition, the non-Federal requirements on their face pertain to motor vehicle marking and placarding. RSPA has been able to identify the HMR provisions relevant to its analysis; the DNR has not suggested that its ability to comment on CWTI's application has been undermined by the application's failure to specify the Federal provisions at issue. Accordingly, compliance with Sec. 107.203(b)(3) is adequate.
Finally, the DNR asserts that CWTI has not sufficiently explained why the Michigan requirements should be preempted. The CWTI application contends that these requirements should be preempted because they concern a covered subject and are not "substantively the same" as HMR requirements. It also argues that the Michigan requirements violate 49 CFR 171.3(c)(1) by regulating waste materials in a manner different from the HMR, and that they conflict with 49 CFR 171.2(f)(2), by requiring a vehicle to represent that a hazardous material is aboard at times when it is not. Finally, the application asserts that the requirements will confuse the public and emergency responders, and either will result in more vehicle mileage and correspondingly greater public risk, or will constitute a burdensome de facto vehicle dedication requirement. These arguments meet the procedural requirement of 49 CFR 107.203(b)(4).
B. "Covered Subject" Test
The 1990 amendments to the HMTA strengthened Federal preemption with respect to five "covered subjects." In these five areas, Congress recognized "a compelling need for standardized requirements relating to certain areas of the transportation of hazardous materials." H.R. Rep. No. 444, 101st Cong., 2d Sess. at 33-34. Congress explained its rationale for the 1990 amendments to the HMTA, including broad Federal preemption of requirements concerning "covered subjects," with findings quoted in Section II, above. See 49 App. U.S.C. 1801 note.
If the non-Federal requirement regulates in the area of a covered subject, a strict preemption standard applies: the requirement is preempted unless it is "substantively the same" as applicable requirements under the HMTA and HMR. 49 App. U.S.C. 1804(a)(4)(A). "'Substantively the same' means that the non-Federal requirement conforms in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted." 49 CFR 107.202(d). The non-Federal regulations must contain "the same substance" as the Federal regulations. Colorado Public Utilities Comm'n v. Harmon, above, 951 F.2d at 1578.
In PD-2(R), RSPA considered whether the State of Illinois' Uniform Hazardous Waste Manifest was preempted under the HMTA. 58 FR 11176. The Illinois manifest differed from the Federal manifest in requiring that additional manifests rather than continuation sheets be used, and that the figure for the total quantity of waste documented on the manifest be rounded to the nearest whole number in the units used. 58 FR at 11176-77.
Because the Illinois requirements concerned the number and content of shipping documents, a "covered subject," the question was whether the Illinois manifest was "substantively the same" as the Federal Uniform Hazardous Waste Manifest required by the HMR. 49 App. U.S.C. 1804(a)(4)(B). RSPA concluded that the differences were not de minimis and not merely editorial, but "significantly alter[ed]" both the information supplied on the manifest and the manifest format, and therefore were preempted. 58 FR at 11183.
"The packing, repacking, handling, labeling, marking, and placarding of hazardous materials" is a "covered subject" under 49 App. U.S.C. 1804(a)(4)(B). Congress, identifying this area as one in which uniformity is critical, stated:
[C]onsistency in regulations pertaining to [packing, repacking, handling, labeling, marking and placarding] are [sic] needed to promote safety at all stages of hazardous materials transportation. Conflicting requirements for any of these subjects will confuse all who come into contact with hazardous materials, including shippers, carriers, and other handlers of such materials in transit. Of major importance as well is the need for consistency for those who respond to emergencies involving hazardous materials. Different requirements in these areas would lessen the ability of emergency responders quickly to identify hazardous materials, thus impairing their ability promptly and effectively to respond to any emergency.
H.R. Rep. No. 444, 101st Cong., 2d Sess. at 34. In designating the marking, labeling and placarding of hazardous materials as an area of particular Federal primacy, the 1990 amendments essentially codified RSPA's long-standing position that this area is one "of exclusive HMTA domain." IR-3, 46 FR 18918, 18924 (Mar. 26, 1981).
RSPA's inconsistency rulings uniformly found hazard warning requirements different from HMR requirements to be preempted. See IR- 31, 55 FR 25572 (June 21, 1990) (placard); IR-30, 55 FR 9676 (Mar. 14, 1990) (sign); IR-24, 53 FR 19848 (May 31, 1988) (placard); IR-22, 52 FR 46574 (Dec. 8, 1987) (placard); IR-3, 46 FR 18918 (identification numbers); cf. IR-32, 55 FR 36736 (ordinance requiring placarding in accordance with HMR not preempted).
In the present case, the requirements at Michigan Administrative Code 299.9406(6) and Michigan Compiled Laws Sec. 323.277(1) compel trucks used to transport hazardous wastes and liquid industrial wastes to bear on each side "Hazardous Waste-Hauling Vehicle" and "licensed industrial waste hauling vehicle," respectively. These requirements, according to the DNR, "facilitate safe and proper emergency response activities by providing a hazard warning to the public concerning the content of a vehicle transporting hazardous waste." They are marking requirements within the meaning of 49 App. U.S.C. 1804(a)(4)(B)(ii), because they direct that language regarding the hazards of a material in transportation be marked in a way that is likely to be understood by emergency responders and the public as hazard communication information. Cf. Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1583 (the preemption inquiry turns not on the purpose of the non- Federal requirement, but on its effect).
Markings, when required under the HMR, generally must be placed on the package. 49 CFR 172.301(a), 172.302(a). In bulk highway transport, markings are placed directly on the cargo tank or portable tank, 49 CFR 172.302(a), 172.326; vehicles transporting hazardous materials in non- bulk packagings are not marked, 49 CFR 172.301(a), see generally 49 CFR 172.300-.338. Conversely, markings required by Michigan need not appear on the packaging; they may be placed elsewhere on the waste-hauling vehicle. Mich. Comp. Laws Ann. Sec. 323.277(1), Mich. Admin. Code 299.9406(6). The location of the markings, however, does not in itself determine whether or not they are markings within the meaning of 49 App. U.S.C. 1804(a)(4)(B)(ii). What is important is that they (1) are in a location where they purport to communicate hazards posed by the material in the vehicle; and (2) use language to do so that may be confused with that of HMR-required markings (see 49 CFR 172.101(c)(9)(requiring use of word "waste" in proper shipping name for hazardous wastes). In this instance, the risk of confusion is present even if the markings appear in a location other than that specified in the HMR.
While the director of the DNR is authorized to designate a material as a "hazardous waste" under Michigan law even if it is not a RCRA hazardous waste, the universe of State "hazardous waste" encompasses all RCRA hazardous wastes. Mich. Admin. Code 299.9104(d), 299.9203(1), 299.9209(1), 299.9213(1). All materials subject to EPA manifest requirements at 40 CFR Part 262 are hazardous materials, 49 CFR 171.8 ("Hazardous waste," "Hazardous material"); RCRA hazardous wastes are subject to EPA manifest requirements. 40 CFR 262.20, 263.20. Thus, RCRA hazardous wastes are hazardous materials, and the marking requirement of Michigan Administrative Code 299.9406(6) applies to the transportation of hazardous materials.
Michigan Compiled Law 323.277(1) applies to "any liquid waste, other than unpolluted water, which is produced by or incident to or results from an industrial or commercial activity or the conduct of any enterprise." Mich. Comp. Laws Ann. Sec. 323.271(b). From this broad definition, it may be inferred that many "liquid industrial wastes" are not hazardous materials under the HMTA. At the same time, the term encompasses liquid hazardous wastes, which, as noted above, are hazardous materials. This marking requirement thus applies to a significant number of liquid wastes that are hazardous materials. Therefore, the two requirements concern the "marking * * * of hazardous materials," a covered subject under 49 App. U.S.C. 1804(a)(4)(B)(ii).
The two Michigan provisions require that motor vehicles used to transport certain hazardous materials be marked in a manner different from the HMR. The HMR require only that the vehicle be placarded to communicate the hazard class(es) of the waste(s) being transported and, for bulk transport, that the identification numbers of the waste(s) on board be displayed. 49 CFR 172.302(a), 172.504(a); see Section I.B, above. In some cases, no placarding is required, or the "Dangerous" placard is authorized. 49 CFR 172.500(b)(1), 172.504(b), 172.504(c), 172.504(f)(9). Placards and identification number markings may not be displayed if no hazardous wastes are on board. 49 CFR 171.2(f)(2). The Michigan provisions require vehicles to be marked with descriptions, formulated by the State, intended to communicate that wastes are, or have been, on board; these descriptions must remain on the vehicle even when it is empty. These differences are not de minimis or editorial. The Michigan requirements, as applied to materials designated as hazardous materials under the HMTA, are not "substantively the same" as the Federal requirements, and are preempted under 49 App. U.S.C. 1811(a)(3).
C. "Obstacle" Test
"Liquid industrial waste," defined at Sec. 323.271(b), is a broad category that, as indicated by the parties, includes wastes that are not hazardous materials under the HMTA. With respect to the Sec. 323.277(1) marking requirement, the above finding of preemption pertains only to the marking of vehicles in which hazardous materials are transported. In determining whether the HMTA preempts the application of Sec. 323.277(1) to vehicles transporting only liquid industrial wastes that are not hazardous materials, the analysis differs.
The marking requirement of Sec. 323.277(1) here does not concern the "marking * * * of hazardous materials," a covered subject under 49 App. U.S.C. 1804(a)(4)(B), because we are concerned with the situation where the vehicle is used to transport only liquid industrial wastes that are not hazardous materials. If the marking requirement were an adoption or a duplication of an HMR marking requirement, the effect of the requirement would be to treat the regulated materials as hazardous materials. This would constitute, in effect, the "designation * * * and classification of hazardous materials," also a covered subject under Sec. 1804(a)(4)(B). Here, the Michigan marking requirement differs from HMR-specified markings and applies to materials that are not hazardous materials. No covered subject is involved and, accordingly, the "substantively the same" standard is not applicable.
As discussed in Section II, above, application of the marking requirement to vehicles transporting only liquid industrial wastes that are not hazardous materials nevertheless is preempted by the HMTA if:
(1) Compliance with both the State * * * requirement and any requirement of [the HMTA] or of a regulation issued under [the HMTA] 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 regulations issued under [the HMTA].
49 App. U.S.C. 1811(a).
The marking requirement, as applied to liquid industrial wastes that are not hazardous materials, "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, above, 951 F.2d at 1580, and therefore is preempted.
The purpose of the HMTA is "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. The single, comprehensive body of requirements concerning hazardous materials shipping papers, marking, labeling, and placarding is at the heart of the regulatory framework established in the HMR to achieve this purpose. Uniformity in this area is critical to ensure that hazardous materials are handled appropriately during transportation and that emergency responders can take efficient and effective response action when an accident occurs. See generally H.R. Rep. No. 444, 101st Cong., 2d Sess. at 34 (quoted above).
For this reason, the Office of Hazardous Materials Safety consistently has expressed the position that the Federal role in designating hazardous materials and applying marking, labeling and placarding requirements to those materials is exclusive. E.g., IR-32, 55 FR 36736; IR-29, 55 FR 9304 (Mar. 12, 1990); IR-28, 55 FR 8884 (Mar. 8, 1990); IR-3, 46 FR 18918 (Mar. 26, 1981); IR-2, 44 FR 75566 (Dec. 20, 1979). This principle has been judicially affirmed. Missouri Pacific RR Co. v. Railroad Comm'n of Texas, 671 F.Supp. 466, 481-82 (W.D. Tex. 1987), aff'd 850 F.2d 264 (5th Cir. 1988), cert den. 109 S.Ct. 794 (1989). Congress emphasized the importance of uniformity in 1990, when it amended the HMTA to identify hazardous materials designation and marking, labeling and placarding as "covered subjects" under essentially exclusive Federal jurisdiction.
RSPA has determined that hazardous materials classification by States and localities in a manner different from the HMR undermines the framework of hazard identification the HMR establishes:
The key to hazardous materials transportation safety is precise communication of risk. The proliferation of differing State and local systems of hazard classification is antithetical to a uniform, comprehensive system of hazardous materials transportation safety regulation. This is precisely the situation which Congress sought to preclude when it enacted the preemption provision of the HMTA.
IR-6, 48 FR 760, 764 (Dec. 29, 1982).
If every state were to assign additional requirements on the basis of independently created and variously named subgroups of * * * materials, the resulting confusion of regulatory requirements would lead ineluctably to the increased likelihood of reduced compliance with the HMR [a]nd subsequent decrease in public safety.
IR-15, 49 FR 46660, 46660 (Nov. 27, 1984). While these rulings concerned the attempt to apply non-Federal requirements different from the HMR to hazardous materials, the rationale applies equally to marking requirements imposed on materials that are not hazardous materials.
Application of the Michigan marking requirement, even to vehicles transporting only liquid industrial wastes that are not hazardous materials, is detrimental to the purposes of the HMTA. The Michigan statute requires a vehicle marking that announces the potential hazard of an "industrial waste." Under the HMR, the term "waste" is a component of the proper shipping name of any RCRA hazardous waste. 49 CFR 172.101(c)(9). "Liquid industrial waste," however, does not conform to markings specified in the HMR. This is tantamount to the creation of an additional class of hazardous materials with its own marking requirements. A proliferation of vehicles bearing non- conforming markings would undermine efforts to educate hazardous materials employees and emergency responders in the single, uniform nomenclature of hazard communication contained in the HMR. Shippers, consignees, law enforcement officers and emergency responders are familiar with HMR-specified markings, which are referable to a single, national body of regulations. Those encountering vehicles with the "liquid industrial waste" marking may be uncertain as to whether the marking indicates the presence of a hazardous material and, if so, what the material might be. Confusion as to whether the marking is an HMR- prescribed marking introduces ambiguity into the regulatory framework. This ambiguity in the long run tends toward reduced compliance. Finally, requiring the marking of vehicles transporting "any liquid waste * * * produced by * * * the conduct of any enterprise," Mich. Comp. Laws Ann. Sec. 323.271(b), expands the universe of vehicles displaying hazard warnings to include those that pose no or little risk to health, safety or property, diminishing the attention that vehicle hazard warnings under the HMR framework should and do command. In all of these respects, a greater risk to public safety is the result.
When a vehicle marking is required, sufficiently similar to HMR markings that it appears to be a hazard warning, but that does not conform to HMR markings, the purposes of the HMTA are undermined. The marking requirement of Sec. 323.277(1), as applied to vehicles transporting liquid industrial wastes that are not hazardous materials, stands as an obstacle to accomplishing the purposes of the HMTA, and therefore is preempted.
Because we find that the Michigan marking requirement is preempted as an obstacle to the HMTA, we need not address the argument that it fails the "dual compliance" test.
D. Other Arguments
The DNR suggests that there is no conflict between the Michigan requirements and the HMR because the former simply "fill th[e] important regulatory void" that the HMR allegedly do not address. The DNR does not explain the "void" to which it refers. Presumably, it is the absence of language on a vehicle describing the wastes it carries, specifically for vehicles shipping Class 9 or non-bulk wastes not subject to placarding requirements.
The HMR are a comprehensive framework of packaging, hazard communication and transportation controls directed to ensuring the safe and efficient movement of hazardous materials. Subparts A through G of 49 CFR part 172 establish a comprehensive system of hazard communication through hazardous materials nomenclature, shipping paper, marking, labeling, placarding and emergency response requirements reflecting a considered balance among regulatory goals of risk minimization, feasibility of administration and compliance, and regulatory cost.
The structure of the HMR is reflected in the statutory language identifying hazardous materials "packing, repacking, handling, labeling, marking, and placarding" as a covered subject. 49 App. U.S.C. 1804(a)(4)(B)(ii). With respect to this "subject," there is no regulatory void in the HMR; there is an encompassing, integrated framework of regulation.
The fact that the HMR do not require additional descriptive markings on vehicles transporting hazardous wastes simply means "that the Secretary has determined that no regulation is needed on that topic." IR-22, 54 FR 26698, 26703 (June 23, 1989) (decision on appeal). For example, the exception of Class 9 materials from placarding requirements is not an oversight, but the result of a conscious decision implemented by regulation. 49 CFR 172.504(f)(9).
CWTI argues that the Michigan requirements will confuse emergency responders and the public; that they will result in additional mileage for marked trucks and correspondingly greater public risk; or, in the alternative, that they constitute a de facto vehicle dedication requirement.
The DNR, conversely, claims that the requirements serve important public interests by informing emergency responders, the public, landfill operators and those seeking transportation services that marked vehicles contain or have contained wastes. It contends that the public benefits of the requirements outweigh the minimal regulatory burden that they impose.
Whether Michigan's requirements confuse or, to the contrary, inform responders and the public, whether in fact they increase vehicle mileage and public risk, and whether they constitute a significant burden on the regulated community are not relevant to the preemption determination concerning a covered subject. In prescribing the "substantively the same" standard, Congress has concluded as a matter of law that in the area of covered subjects, uniformity is paramount and Federal regulation shall prevail. Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1582-83. This is true as well with respect to marking requirements subject to the "obstacle" test. PD-1(R), 58 FR 32418, 32420 (June 9, 1993) (preemption under the HMTA turns on the effect, not the purpose, of the non-Federal requirement) (denying petition for reconsideration). "The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail." Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1583 (quoting Free v. Bland, 369 U.S. 663, 666, 8 L.Ed.2d 180 (1962)).
V. Ruling
For the reasons set forth above, RSPA finds that Michigan Compiled Laws Sec. 323.277(1) and Michigan Administrative Code 299.9406(6), requiring the marking of motor vehicles used to transport, respectively, "liquid industrial wastes" and "hazardous wastes," are preempted by 49 App. U.S.C. 1811(a)(3). These marking requirements are not "substantively the same as" Federal marking, labeling and placarding requirements. As applied to vehicles used to transport only liquid industrial wastes that are not hazardous materials, the marking requirement at Sec. 323.277(1) is preempted as an obstacle to accomplishing the purposes of the HMTA.
VI. Petition for Reconsideration/Judicial Review
In accordance with 49 CFR 107.211(a), "[a]ny person aggrieved" by RSPA's decision on CWTI's 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 February 2, 1994.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 94-2907 Filed 2-8-94; 8:45 am]
BILLING CODE 4910-60-P
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