Pipeline and Hazardous Materials Safety Administration

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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]
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