Maryland Certification Requirements for Transporters of Oil or Controlled Hazardous Substances

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.

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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:

(a) 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.

(b) Training in the required labeling and marking of all

containers of 110 gallons or less.

(c) 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).

(d) Training in the Federal Motor Carrier Safety Administration

[sic] regulations including proper maintenance of a driver's daily

log.

(e) Training in emergency procedures to follow in case of an

accident or spill.

(f) 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

(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.

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:

(i) The designation, description, and classification of

hazardous materials.

(ii) The packing, repacking, handling, labeling, marking, and

placarding of hazardous materials.

(iii) The preparation, execution, and use of shipping documents

pertaining to hazardous materials and requirements respecting the

number, content, and placement of such documents.

(iv) The written notification, recording, and reporting of the

unintentional release in transportation of hazardous materials.

(v) 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:

1. 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.

2. 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:

(a) Do not conflict with the training requirements in [49 CFR

part 172, Subpart H and part 177]; and

(b) 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]

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