[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13326]


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[Federal Register: June 3, 1994]


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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]
BILLING CODE 4910-60-P