Determination That Maryland Certification Requirements for Transporters of Oil or Controlled Hazardous Substances Are Preempted by Federal Hazardous Material Transportation Law; Decision on Petition for Reconsideration

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Preemption Determination No. PD-7(R); Docket No. PDA-12(R)]

Determination That Maryland Certification Requirements for

Transporters of Oil or Controlled Hazardous Substances Are Preempted by

Federal Hazardous Material Transportation Law; Decision on Petition for

Reconsideration

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Decision on petition for reconsideration of RSPA's

administrative determination that Maryland certification requirements

for transporters of oil or controlled hazardous substances are

preempted by the Federal Hazardous Material Transportation Law.

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Petitioners: Maryland Department of the Environment (MDE).

State Laws Affected: Code of Maryland Regulations (COMAR)

26.10.01.16.D and 26.13.04.01.F.

Applicable Federal Requirements: 49 U.S.C. 5101 et seq. (previously

the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et

seq.), and the Hazardous Materials Regulations (HMR), 49 CFR parts 171-

180.

Mode Affected: Highway.

SUMMARY: The Maryland Department of the Environment petition requests

reconsideration of a RSPA determination that Federal hazardous material

transportation law preempts Maryland regulations requiring

certification of non-domiciled operators of motor vehicles loading or

unloading certain hazardous materials in Maryland. The petition is

denied.

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.

I. Background

On June 3, 1994, RSPA published in the Federal Register the

determination that Maryland certification requirements, applicable to

operators of motor vehicles loading or unloading oil or ``controlled

hazardous substances'' (CHS) in Maryland, are preempted by the Federal

hazardous material transportation law (Federal hazmat law), to the

extent that they apply to the loading or unloading of oil or CHS that

is a hazardous material. 59 FR 28913. RSPA found that these

requirements are training requirements, and that the requirements, as

enforced and applied, are stricter than HMR training requirements at 49

CFR 172.700-.704.

Specifically, COMAR 26.10.01.16.D, which applies to operators of

oil cargo tanks, requires the operator to take and pass a test

administered by MDE at five in-state locations and at out of-state

business locations approved by MDE. COMAR 26.13.04.01.F, which applies

to operators of vehicles transporting CHS, requires ``[t]raining in the

requirements necessary to transport hazardous waste,'' which include

requirements promulgated by, and specific to, Maryland. In addition,

the instructor must meet an experience criterion, and MDE may require

the operator to pass an approved written examination. These elements of

the certification requirements, RSPA found, are more strict than the

HMR. 59 FR 28919.

To the extent that the requirements are more strict than the HMR,

they violate 49 CFR 172.701, which permits States to apply training

requirements to non-domiciled vehicle operators only if the

requirements are no more strict than those of the HMR. Accordingly,

RSPA reasoned, each of the two requirements is ``an obstacle to

accomplishing and carrying out'' Federal hazmat law. 49 U.S.C.

5125(a)(2); see 59 FR 28919.

Within the 20-day time period provided in 49 CFR 107.211(a), MDE

filed a petition for reconsideration of the determination. It certified

that, in accordance with 49 CFR 107.211(c), it had mailed copies of the

petition to CWTI/NTTC and to all others who had submitted comments,

with a statement that each person, within 20 days, could submit

comments on the petition. RSPA has received no comments on the MDE

petition.

II. Petition for Reconsideration

In its June 20, 1994 petition, MDE first states that the three

elements that RSPA found to be more strict than the HMR do not apply to

both the oil and CHS vehicle operator certification requirements. It

notes that only COMAR 26.10.01.16.D (oil) requires that the operator

pass a State-administered examination; under COMAR 26.13.04.01.F (CHS),

the examination requirement is at the discretion of MDE. Similarly,

only COMAR 26.13.04.01.F specifies required areas of training and

instructor experience requirements.

MDE concedes that its CHS vehicle operator certification provisions

specifying required areas of training and instructor experience

criteria are ``training requirements'' within the meaning of 49 CFR

172.701. On the other hand, it contests the RSPA finding that the

examination requirement, and the general requirement to obtain a

certificate, are training requirements. It suggests, instead, that they

``are intended to demonstrate that the training received by the drivers

is adequate to insure the safe transportation and transfer of hazardous

materials in Maryland.'' Because they are not training requirements,

MDE then argues, RSPA cannot find them to be obstacles simply because

they violate 49 CFR 172.701. Rather, MDE contends, RSPA must factually

analyze whether they are obstacles as enforced and applied. MDE

contends that CWTI/NTTC has not submitted specific evidence sufficient

to allow RSPA to find the requirements to be obstacles. As an example,

it notes, it does not in fact require a CHS vehicle operator to take an

examination, but merely to submit a statement from the operator's

employer that approved training has been completed.

MDE does not dispute that its rules specifying areas of training

for CHS vehicle operators are training requirements, but argues that

they are not more strict than the HMR. It submits that the rules

generally are consistent with HMR requirements, differing only in

requiring knowledge of Maryland requirements for transporting and

handling hazardous wastes. In this latter respect, it contends that

operator familiarity with the laws of States of operation should be

deemed to be part of required HMR training, and therefore that the

Maryland rules should not be found to be more strict.

MDE concedes that the instructor experience criterion is more

strict than the HMR. It argues that preemption of this provision

nevertheless should not invalidate the entire CHS vehicle operator

certification program.

Finally, in their application CWTI/NTTC represented that Maryland

applies the CHS vehicle operator certification requirement only to

those loading or unloading RCRA hazardous waste, and not to other

materials meeting the definition of CHS. Although MDE did not take

issue with that representation in its comments, it now indicates that

it applies the certification requirement to other CHS, including PCB-

contaminated wastes, certain wastes associated with the production

[[Page 10420]] of military chemical warfare agents, certain wastes

generated in the production of phthalate esters, and certain other

organic chemical industry wastes not regulated under RCRA. It notes

that this fact may simply correct the record, and may not affect the

preemption determination.

MDE asks that RSPA reverse its preemption determination or at least

reconsider the decision with respect to the examination and

certification requirements by examining whether those requirements, as

applied and enforced, in fact are obstacles to achieving the goals of

the HMR.

III. Discussion

The examination requirements, specification of training subjects,

and instructor experience criterion under COMAR 26.01.10.16.D and

26.13.04.01.F, as well as the certification requirements themselves,

are training requirements within the meaning of 49 CFR 172.700(b).

Under that section, ``training'' is defined as:

[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 term ``training,'' then, particularly as it extends to

``ensuring'' hazmat employee knowledge in the specified areas,

encompasses more than the subject matter that hazmat employees are

required to learn. It also includes the means by which hazmat employees

are instructed and by which the enforcing governmental body may

determine that instruction has been successful. Accordingly, ``training

requirements'' include not only provisions that specify the subject

matter of training, but also those that, for instance, prescribe how

instruction is to be conducted and documented.

That the term should be read broadly is evidenced by 49 CFR

172.701, which states: ``This subpart * * * prescribe[s] minimum

training requirements for the transportation of hazardous materials''

(emphasis added). Thus, under section 172.701, the requirements of the

subpart, 49 CFR 172.700-.704, including examination requirements, 49

CFR 172.702(d), and training documentation requirements, 49 CFR

172.704(d), all are ``training requirements.'' As to the Maryland

certification requirements, the sole criterion for issuance of the

operator certificate under COMAR 26.01.10.17 and 26.13.04.01.F is

satisfactory completion of prescribed training (an applicant under

COMAR 26.13.04.01.F also must submit a $20 fee, presumably for

processing). The certificate, therefore, is no more and no less than a

documentation of training, and the certification requirement is a

training requirement.

This reading is consistent with the basis of 49 CFR 172.701. As

discussed in the determination, this section, which permits a State to

apply motor vehicle operator training requirements more strict than the

HMR only to those domiciled in the State, balances competing interests.

On the one hand, it ``recognizes the traditional regulation by States

of their own resident drivers.'' 59 FR 28919 (quoting 57 FR 20944,

20947 (May 15, 1992)). On the other, it recognizes 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.

59 FR 28919.

Confusion, cost and paperwork burdens would result not only from

States specifying different subject matters in which non-domiciled

vehicle operators must be instructed, but just as much from disparate

examination, documentation and certification requirements. In

Inconsistency Ruling (IR-) 26, 54 FR 16314 (Apr. 21, 1989), California

required non-resident motor vehicle operators to have a Non-Resident

Special Certificate or an employer's certification on a State-approved

form before entering the State. RSPA found this to be a training

requirement preempted by the HMR. 54 FR at 16323-24. We found that

``documentary prerequisites for the transportation of hazardous

materials'' imposed on non-domiciled operators would cause unnecessary

delays in the transportation of hazardous materials in commerce. 54 FR

16323. Section 172.701 closely adopts the rationale of IR-26. See 57 FR

20947.

Furthermore, MDE states in its petition, again, that its

examination and certification requirements are ``to demonstrate that

the training received by the drivers is adequate to insure the safe

transportation and transfer of hazardous materials in Maryland.'' As

thus characterized, these are training requirements within the

Sec. 172.700(b) definition. More directly, MDE asserted in its June 23,

1993 comments on the CWTI/NTTC application:

Subpart H (49 CFR 172.700(b)) defines training to mean ``a

systematic program that ensures a hazmat employee * * * is able to

recognize and identify hazardous materials * * * and has knowledge

of emergency response information, self protection measures and

accident prevention methods and procedures.'' These are exactly the

issues addressed by the State's training requirements.

MDE's characterization at that time is diametrically opposed to the

position it now takes. For the reasons discussed, RSPA agreed with

MDE's earlier characterization, and is not now persuaded to the

contrary.

Whether the specific requirement to obtain a certificate of

training from the State fails the obstacle test was not explicitly

addressed in the determination. As MDE directly raises the issue in its

petition, this decision will address it. Because the certification

requirements are training requirements, to determine whether they are

an ``obstacle to accomplishing and carrying out'' Federal hazmat law,

49 U.S.C. 5125(a)(2), it is necessary only to determine whether they

violate 49 CFR 172.701. A training requirement that violates 49 CFR

172.701 is an obstacle as a matter of law. See 59 FR 28919. The HMR do

not require an operator to obtain a certificate of training from a

governmental body; therefore, the MDE requirement to do so is more

strict than the HMR, and is preempted as an obstacle. See IR-26, 54 FR

at 16323 (discussed above).

MDE is correct that if the requirements in issue were not training

requirements, then 49 CFR 172.701 would not apply. If 49 CFR 172.701

did not apply, RSPA could not find that merely because the requirements

as applied to non-domiciled operators are stricter than the HMR, they

violate the obstacle test. Rather, RSPA would need to analyze whether

these particular requirements in fact create an obstacle.

MDE supposes wrongly, however, that if the certification

requirements are training requirements, it is not necessary to examine

them ``as applied or enforced.'' 49 U.S.C. 5125(a)(2). Section 172.701

simply establishes, as a matter of law, when non-Federal motor vehicle

operator training requirements are an obstacle to accomplishing the

goals of the HMR. Under the obstacle test, however, the non-Federal

requirements to be considered are those that are applied or enforced.

For one, this ensures that RSPA does not expend resources considering

hypothetical preemption issues.

Absent contrary evidence in the record, RSPA presumes that a State

rule is applied and enforced by its clear terms. In this case, MDE does

not dispute that the operator of an oil cargo [[Page 10421]] tank

subject to COMAR 26.10.01.16.D must appear at a place designated by MDE

and demonstrate, by passing an examination, that he or she has

knowledge of procedures for handling oil. MDE does not dispute that the

training received by an operator of a CHS transport vehicle subject to

COMAR 26.13.04.01.F must include instruction in certain Maryland

requirements and must be administered by an instructor meeting certain

experience requirements. Finally, MDE does not dispute that a cargo

tank motor vehicle carrying oil or a vehicle carrying CHS may not be

operated in Maryland for the purpose of loading or unloading within the

State, unless the operator has applied to the MDE and received the

required certificate.

As to how the provisions in question are enforced or applied, MDE

disputes only RSPA's characterization of the CHS operator's examination

requirement. It states that an examination is not required, but that a

statement from the operator's employer that approved training has been

completed may suffice. See also 58 FR 29322-23 & n. 5 (CWTI/NTTC

agreement with this characterization). COMAR 26.13.04.01.F(6) provides

that MDE may require an applicant for a certificate to pass an

administered written examination; MDE does not say unambiguously that

it never so requires. Regardless, if, as MDE applies and enforces its

rules, there is no examination requirement under COMAR 26.13.04.01.F,

then no preemption of an examination requirement is found. It remains,

however, that the requirement that CHS vehicle operators apply for and

obtain a certificate is preempted as more strict than the HMR.

MDE requires operator training in Maryland hazardous waste

regulations, and concedes that the HMR do not require this. It claims

that its requirement nevertheless is not more strict than the HMR

because the HMR should be deemed to require operator training in the

laws of States of operation. That the MDE believes the HMR should

require operator training in the laws of States of operation, however,

does not mean that the HMR actually do require that type of training.

The HMR do not prohibit an employer from training its employees in

the requirements of the various States. Indeed, because an employer

likely would be liable for an operator's violation of State law, the

employer would be wise to instruct its employees on the laws of the

States in which they operate. Nonetheless, the HMR do not require it.

Operator training that did not include instruction in Maryland

hazardous waste law would not for that reason violate the HMR; it

would, however, violate COMAR 26.13.04.01.F(4). This suffices to show

that the Maryland requirement, in this respect, is more strict than the

HMR.

MDE correctly surmises that its enforcement of the certificate

requirement against operators of vehicles loading or unloading CHS

other than RCRA hazardous waste does not affect the preemption

determination. If the CHS that is not RCRA hazardous waste otherwise

qualifies as a hazardous material under the HMR, then the determination

applies to operators of vehicles loading or unloading that material to

the same extent as it applies to operators loading or unloading RCRA

hazardous waste. If that CHS is not a hazardous material, the

preemption determination does not apply. Training requirements for

operators of vehicles not transporting hazardous materials are not

preempted by the HMR.

Finally, the MDE petition suggests some confusion about the effect

of a RSPA preemption determination that rules unfavorably on some, but

not all, elements of a State rule. The Maryland rules are preempted

only to the extent that they are an obstacle to accomplishing the

purposes of Federal hazmat law. Ray v. Atlantic Richfield, Inc., 435

U.S. 151 (1978). Accordingly, to the extent the rules are applied and

enforced against non-domiciled operators without the offending

elements, namely the requirement to pass an MDE-administered

examination, the requirement for training in Maryland laws, the

instructor experience criterion and the certification requirement, they

are not preempted.

IV. Ruling

For the reasons stated above, the MDE petition for reconsideration

is denied. This decision incorporates and reaffirms the determination,

set forth at 59 FR 28920, that 49 U.S.C. 5125:

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 [Federal hazmat law]. As applied

to vehicle operators domiciled in Maryland, the requirements are not

preempted.

V. Final Agency Action

In accordance with 49 CFR 107.211(d), this decision constitutes

RSPA's final agency action on the April 19, 1993 CWTI/NTTC application

for a determination of preemption as to the above-specified Maryland

requirements. Any party to this proceeding may seek review of this

determination ``by the appropriate district court of the United States

* * * within 60 days after such decision becomes final.'' 49 U.S.C.

5125.

Issued in Washington, DC on February 17, 1995.

Alan I. Roberts.

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 95-4625 Filed 2-23-95; 8:45 am]

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