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)]

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

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

ACTION: Decision on petition for reconsideration of RSPA's
administrative determination that Maryland certification requirements
for transporters of oil or controlled hazardous substances are
preempted by the Federal Hazardous Material Transportation Law.

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Petitioners: Maryland Department of the Environment (MDE).

State Laws Affected: Code of Maryland Regulations (COMAR)
26.10.01.16.D and 26.13.04.01.F.

Applicable Federal Requirements: 49 U.S.C. 5101 et seq. (previously
the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et
seq.), and the Hazardous Materials Regulations (HMR), 49 CFR parts 171-
180.

Mode Affected: Highway.

SUMMARY: The Maryland Department of the Environment petition requests
reconsideration of a RSPA determination that Federal hazardous material
transportation law preempts Maryland regulations requiring
certification of non-domiciled operators of motor vehicles loading or
unloading certain hazardous materials in Maryland. The petition is
denied.

FOR FURTHER INFORMATION CONTACT: Charles B. Holtman, Office of the
Chief Counsel, Research and Special Programs Administration, U.S.
Department of Transportation, 400 Seventh Street SW, Washington, DC
20590-0001, telephone number (202) 366-4400.

I. Background

On June 3, 1994, RSPA published in the Federal Register the
determination that Maryland certification requirements, applicable to
operators of motor vehicles loading or unloading oil or ``controlled
hazardous substances'' (CHS) in Maryland, are preempted by the Federal
hazardous material transportation law (Federal hazmat law), to the
extent that they apply to the loading or unloading of oil or CHS that
is a hazardous material. 59 FR 28913. RSPA found that these
requirements are training requirements, and that the requirements, as
enforced and applied, are stricter than HMR training requirements at 49
CFR 172.700-.704.

Specifically, COMAR 26.10.01.16.D, which applies to operators of
oil cargo tanks, requires the operator to take and pass a test
administered by MDE at five in-state locations and at out of-state
business locations approved by MDE. COMAR 26.13.04.01.F, which applies
to operators of vehicles transporting CHS, requires ``[t]raining in the
requirements necessary to transport hazardous waste,'' which include
requirements promulgated by, and specific to, Maryland. In addition,
the instructor must meet an experience criterion, and MDE may require
the operator to pass an approved written examination. These elements of
the certification requirements, RSPA found, are more strict than the
HMR. 59 FR 28919.

To the extent that the requirements are more strict than the HMR,
they violate 49 CFR 172.701, which permits States to apply training
requirements to non-domiciled vehicle operators only if the
requirements are no more strict than those of the HMR. Accordingly,
RSPA reasoned, each of the two requirements is ``an obstacle to
accomplishing and carrying out'' Federal hazmat law. 49 U.S.C.
5125(a)(2); see 59 FR 28919.

Within the 20-day time period provided in 49 CFR 107.211(a), MDE
filed a petition for reconsideration of the determination. It certified
that, in accordance with 49 CFR 107.211(c), it had mailed copies of the
petition to CWTI/NTTC and to all others who had submitted comments,
with a statement that each person, within 20 days, could submit
comments on the petition. RSPA has received no comments on the MDE
petition.

II. Petition for Reconsideration

In its June 20, 1994 petition, MDE first states that the three
elements that RSPA found to be more strict than the HMR do not apply to
both the oil and CHS vehicle operator certification requirements. It
notes that only COMAR 26.10.01.16.D (oil) requires that the operator
pass a State-administered examination; under COMAR 26.13.04.01.F (CHS),
the examination requirement is at the discretion of MDE. Similarly,
only COMAR 26.13.04.01.F specifies required areas of training and
instructor experience requirements.

MDE concedes that its CHS vehicle operator certification provisions
specifying required areas of training and instructor experience
criteria are ``training requirements'' within the meaning of 49 CFR
172.701. On the other hand, it contests the RSPA finding that the
examination requirement, and the general requirement to obtain a
certificate, are training requirements. It suggests, instead, that they
``are intended to demonstrate that the training received by the drivers
is adequate to insure the safe transportation and transfer of hazardous
materials in Maryland.'' Because they are not training requirements,
MDE then argues, RSPA cannot find them to be obstacles simply because
they violate 49 CFR 172.701. Rather, MDE contends, RSPA must factually
analyze whether they are obstacles as enforced and applied. MDE
contends that CWTI/NTTC has not submitted specific evidence sufficient
to allow RSPA to find the requirements to be obstacles. As an example,
it notes, it does not in fact require a CHS vehicle operator to take an
examination, but merely to submit a statement from the operator's
employer that approved training has been completed.

MDE does not dispute that its rules specifying areas of training
for CHS vehicle operators are training requirements, but argues that
they are not more strict than the HMR. It submits that the rules
generally are consistent with HMR requirements, differing only in
requiring knowledge of Maryland requirements for transporting and
handling hazardous wastes. In this latter respect, it contends that
operator familiarity with the laws of States of operation should be
deemed to be part of required HMR training, and therefore that the
Maryland rules should not be found to be more strict.

MDE concedes that the instructor experience criterion is more
strict than the HMR. It argues that preemption of this provision
nevertheless should not invalidate the entire CHS vehicle operator
certification program.

Finally, in their application CWTI/NTTC represented that Maryland
applies the CHS vehicle operator certification requirement only to
those loading or unloading RCRA hazardous waste, and not to other
materials meeting the definition of CHS. Although MDE did not take
issue with that representation in its comments, it now indicates that
it applies the certification requirement to other CHS, including PCB-
contaminated wastes, certain wastes associated with the production
[[Page 10420]] of military chemical warfare agents, certain wastes
generated in the production of phthalate esters, and certain other
organic chemical industry wastes not regulated under RCRA. It notes
that this fact may simply correct the record, and may not affect the
preemption determination.

MDE asks that RSPA reverse its preemption determination or at least
reconsider the decision with respect to the examination and
certification requirements by examining whether those requirements, as
applied and enforced, in fact are obstacles to achieving the goals of
the HMR.

III. Discussion

The examination requirements, specification of training subjects,
and instructor experience criterion under COMAR 26.01.10.16.D and
26.13.04.01.F, as well as the certification requirements themselves,
are training requirements within the meaning of 49 CFR 172.700(b).
Under that section, ``training'' is defined as:

[A] systematic program that ensures a hazmat employee has
familiarity with the general provisions of [the HMR], is able to
recognize and identify hazardous materials, has knowledge of
specific requirements of [the HMR] applicable to functions performed
by the employee, and has knowledge of emergency response
information, self-protection measures and accident prevention
methods and procedures.

The term ``training,'' then, particularly as it extends to
``ensuring'' hazmat employee knowledge in the specified areas,
encompasses more than the subject matter that hazmat employees are
required to learn. It also includes the means by which hazmat employees
are instructed and by which the enforcing governmental body may
determine that instruction has been successful. Accordingly, ``training
requirements'' include not only provisions that specify the subject
matter of training, but also those that, for instance, prescribe how
instruction is to be conducted and documented.

That the term should be read broadly is evidenced by 49 CFR
172.701, which states: ``This subpart * * * prescribe[s] minimum
training requirements for the transportation of hazardous materials''
(emphasis added). Thus, under section 172.701, the requirements of the
subpart, 49 CFR 172.700-.704, including examination requirements, 49
CFR 172.702(d), and training documentation requirements, 49 CFR
172.704(d), all are ``training requirements.'' As to the Maryland
certification requirements, the sole criterion for issuance of the
operator certificate under COMAR 26.01.10.17 and 26.13.04.01.F is
satisfactory completion of prescribed training (an applicant under
COMAR 26.13.04.01.F also must submit a $20 fee, presumably for
processing). The certificate, therefore, is no more and no less than a
documentation of training, and the certification requirement is a
training requirement.

This reading is consistent with the basis of 49 CFR 172.701. As
discussed in the determination, this section, which permits a State to
apply motor vehicle operator training requirements more strict than the
HMR only to those domiciled in the State, balances competing interests.
On the one hand, it ``recognizes the traditional regulation by States
of their own resident drivers.'' 59 FR 28919 (quoting 57 FR 20944,
20947 (May 15, 1992)). On the other, it recognizes that:

Were States permitted to impose stricter requirements on non-
resident operators, operators potentially would be subject to
numerous sets of training requirements, with resulting confusion,
cost and paperwork burdens.

59 FR 28919.

Confusion, cost and paperwork burdens would result not only from
States specifying different subject matters in which non-domiciled
vehicle operators must be instructed, but just as much from disparate
examination, documentation and certification requirements. In
Inconsistency Ruling (IR-) 26, 54 FR 16314 (Apr. 21, 1989), California
required non-resident motor vehicle operators to have a Non-Resident
Special Certificate or an employer's certification on a State-approved
form before entering the State. RSPA found this to be a training
requirement preempted by the HMR. 54 FR at 16323-24. We found that
``documentary prerequisites for the transportation of hazardous
materials'' imposed on non-domiciled operators would cause unnecessary
delays in the transportation of hazardous materials in commerce. 54 FR
16323. Section 172.701 closely adopts the rationale of IR-26. See 57 FR
20947.

Furthermore, MDE states in its petition, again, that its
examination and certification requirements are ``to demonstrate that
the training received by the drivers is adequate to insure the safe
transportation and transfer of hazardous materials in Maryland.'' As
thus characterized, these are training requirements within the
Sec. 172.700(b) definition. More directly, MDE asserted in its June 23,
1993 comments on the CWTI/NTTC application:

Subpart H (49 CFR 172.700(b)) defines training to mean ``a
systematic program that ensures a hazmat employee * * * is able to
recognize and identify hazardous materials * * * and has knowledge
of emergency response information, self protection measures and
accident prevention methods and procedures.'' These are exactly the
issues addressed by the State's training requirements.

MDE's characterization at that time is diametrically opposed to the
position it now takes. For the reasons discussed, RSPA agreed with
MDE's earlier characterization, and is not now persuaded to the
contrary.

Whether the specific requirement to obtain a certificate of
training from the State fails the obstacle test was not explicitly
addressed in the determination. As MDE directly raises the issue in its
petition, this decision will address it. Because the certification
requirements are training requirements, to determine whether they are
an ``obstacle to accomplishing and carrying out'' Federal hazmat law,
49 U.S.C. 5125(a)(2), it is necessary only to determine whether they
violate 49 CFR 172.701. A training requirement that violates 49 CFR
172.701 is an obstacle as a matter of law. See 59 FR 28919. The HMR do
not require an operator to obtain a certificate of training from a
governmental body; therefore, the MDE requirement to do so is more
strict than the HMR, and is preempted as an obstacle. See IR-26, 54 FR
at 16323 (discussed above).

MDE is correct that if the requirements in issue were not training
requirements, then 49 CFR 172.701 would not apply. If 49 CFR 172.701
did not apply, RSPA could not find that merely because the requirements
as applied to non-domiciled operators are stricter than the HMR, they
violate the obstacle test. Rather, RSPA would need to analyze whether
these particular requirements in fact create an obstacle.

MDE supposes wrongly, however, that if the certification
requirements are training requirements, it is not necessary to examine
them ``as applied or enforced.'' 49 U.S.C. 5125(a)(2). Section 172.701
simply establishes, as a matter of law, when non-Federal motor vehicle
operator training requirements are an obstacle to accomplishing the
goals of the HMR. Under the obstacle test, however, the non-Federal
requirements to be considered are those that are applied or enforced.
For one, this ensures that RSPA does not expend resources considering
hypothetical preemption issues.

Absent contrary evidence in the record, RSPA presumes that a State
rule is applied and enforced by its clear terms. In this case, MDE does
not dispute that the operator of an oil cargo [[Page 10421]] tank
subject to COMAR 26.10.01.16.D must appear at a place designated by MDE
and demonstrate, by passing an examination, that he or she has
knowledge of procedures for handling oil. MDE does not dispute that the
training received by an operator of a CHS transport vehicle subject to
COMAR 26.13.04.01.F must include instruction in certain Maryland
requirements and must be administered by an instructor meeting certain
experience requirements. Finally, MDE does not dispute that a cargo
tank motor vehicle carrying oil or a vehicle carrying CHS may not be
operated in Maryland for the purpose of loading or unloading within the
State, unless the operator has applied to the MDE and received the
required certificate.

As to how the provisions in question are enforced or applied, MDE
disputes only RSPA's characterization of the CHS operator's examination
requirement. It states that an examination is not required, but that a
statement from the operator's employer that approved training has been
completed may suffice. See also 58 FR 29322-23 & n. 5 (CWTI/NTTC
agreement with this characterization). COMAR 26.13.04.01.F(6) provides
that MDE may require an applicant for a certificate to pass an
administered written examination; MDE does not say unambiguously that
it never so requires. Regardless, if, as MDE applies and enforces its
rules, there is no examination requirement under COMAR 26.13.04.01.F,
then no preemption of an examination requirement is found. It remains,
however, that the requirement that CHS vehicle operators apply for and
obtain a certificate is preempted as more strict than the HMR.

MDE requires operator training in Maryland hazardous waste
regulations, and concedes that the HMR do not require this. It claims
that its requirement nevertheless is not more strict than the HMR
because the HMR should be deemed to require operator training in the
laws of States of operation. That the MDE believes the HMR should
require operator training in the laws of States of operation, however,
does not mean that the HMR actually do require that type of training.

The HMR do not prohibit an employer from training its employees in
the requirements of the various States. Indeed, because an employer
likely would be liable for an operator's violation of State law, the
employer would be wise to instruct its employees on the laws of the
States in which they operate. Nonetheless, the HMR do not require it.
Operator training that did not include instruction in Maryland
hazardous waste law would not for that reason violate the HMR; it
would, however, violate COMAR 26.13.04.01.F(4). This suffices to show
that the Maryland requirement, in this respect, is more strict than the
HMR.

MDE correctly surmises that its enforcement of the certificate
requirement against operators of vehicles loading or unloading CHS
other than RCRA hazardous waste does not affect the preemption
determination. If the CHS that is not RCRA hazardous waste otherwise
qualifies as a hazardous material under the HMR, then the determination
applies to operators of vehicles loading or unloading that material to
the same extent as it applies to operators loading or unloading RCRA
hazardous waste. If that CHS is not a hazardous material, the
preemption determination does not apply. Training requirements for
operators of vehicles not transporting hazardous materials are not
preempted by the HMR.

Finally, the MDE petition suggests some confusion about the effect
of a RSPA preemption determination that rules unfavorably on some, but
not all, elements of a State rule. The Maryland rules are preempted
only to the extent that they are an obstacle to accomplishing the
purposes of Federal hazmat law. Ray v. Atlantic Richfield, Inc., 435
U.S. 151 (1978). Accordingly, to the extent the rules are applied and
enforced against non-domiciled operators without the offending
elements, namely the requirement to pass an MDE-administered
examination, the requirement for training in Maryland laws, the
instructor experience criterion and the certification requirement, they
are not preempted.

IV. Ruling

For the reasons stated above, the MDE petition for reconsideration
is denied. This decision incorporates and reaffirms the determination,
set forth at 59 FR 28920, that 49 U.S.C. 5125:

Preempts Maryland regulations COMAR 26.10.01.16.D and COMAR
26.13.04.01.F, requiring certification of operators of motor
vehicles loading or unloading hazardous materials in Maryland, as
they apply to vehicle operators not domiciled in Maryland.
Specifically, these requirements are stricter than Federal operator
training requirements and therefore are obstacles to accomplishing
the full purposes and objectives of [Federal hazmat law]. As applied
to vehicle operators domiciled in Maryland, the requirements are not
preempted.

V. Final Agency Action

In accordance with 49 CFR 107.211(d), this decision constitutes
RSPA's final agency action on the April 19, 1993 CWTI/NTTC application
for a determination of preemption as to the above-specified Maryland
requirements. Any party to this proceeding may seek review of this
determination ``by the appropriate district court of the United States
* * * within 60 days after such decision becomes final.'' 49 U.S.C.
5125.

Issued in Washington, DC on February 17, 1995.
Alan I. Roberts.
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-4625 Filed 2-23-95; 8:45 am]
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