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Michigan Marking Requirements for Vehicles Transporting Hazardous and Liquid Industrial Wastes; Notice

American Government Special Collections Reference Desk

Trucking American Government

Michigan Marking Requirements for Vehicles Transporting Hazardous and Liquid Industrial Wastes; Notice

Alan I. Roberts
U.S. Department of Transportation
February 9, 1994


[Federal Register Volume 59, Number 27 (Wednesday, February 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-2907]


[[Page Unknown]]

[Federal Register: February 9, 1994]


  
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Part IV





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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Michigan Marking Requirements for Vehicles Transporting Hazardous and 
Liquid Industrial Wastes; Notice
DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Preemption Determination No. PD-6(R); Docket No. PDA-8(R)]

 
Michigan Marking Requirements for Vehicles Transporting Hazardous 
and Liquid Industrial Wastes

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

ACTION: Administrative determination that Michigan marking requirements 
for vehicles licensed to carry hazardous and liquid industrial wastes 
are preempted by the Hazardous Materials Transportation Act.

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APPLICANT: Chemical Waste Transportation Institute, on behalf of the 
National Solid Wastes Management Association.

STATE LAWS AFFECTED: Michigan Compiled Laws Sec. 323.277(1); Michigan 
Administrative Code 299.9406(6).

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: Michigan Compiled Laws Sec. 323.277(1) and Michigan 
Administrative Code 299.9406(6), requiring the marking of motor 
vehicles used to transport, respectively, ``liquid industrial waste'' 
and ``hazardous waste,'' are preempted by 49 App. U.S.C. 1811(a)(3). 
These marking requirements are not ``substantively the same as'' 
Federal marking, labeling and placarding requirements. As applied to 
vehicles used to transport only liquid industrial wastes that are not 
hazardous materials, the marking requirement at Sec. 323.277(1) is 
preempted as an obstacle to accomplishing the purposes of the HMTA.

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 January 4, 1993, the Chemical Waste Transportation Institute 
(CWTI), an institute of the National Solid Wastes Management 
Association, applied for a determination of preemption pursuant to 49 
CFR 107.203. The CWTI application seeks an administrative determination 
that State of Michigan requirements to mark motor vehicles used to 
transport ``hazardous waste'' and ``liquid industrial waste'' are 
preempted by the HMTA.
    On January 26, 1993, RSPA published a Public Notice and Invitation 
to Comment, providing for comments until March 31, 1993 and rebuttal 
comments until June 4, 1993. 58 FR 6170. The Michigan Department of 
Natural Resources (DNR) submitted comments opposing preemption; one 
waste industry association and two waste transporters submitted 
comments supporting preemption. CWTI submitted rebuttal comments 
responding to those of the DNR.

A. Michigan Requirements for Marking Waste-Hauling Vehicles

    The two provisions of Michigan law for which CWTI seeks a 
preemption determination impose marking requirements on motor vehicles 
used to transport ``liquid industrial waste'' and ``hazardous waste.''
    Michigan Compiled Laws, Secs. 323.271 through 323.280 (cited by 
CWTI and commenters as Michigan Act 136, Public Acts of 1969), 
regulates the transportation and disposal of ``liquid industrial 
waste.'' ``Liquid industrial waste'' is defined as:

    Any liquid waste, other than unpolluted water, which is produced 
by or incident to or results from an industrial or commercial 
activity or the conduct of any enterprise.

Mich. Comp. Laws Ann. Sec. 323.271(b) (West Supp. 1993). The statute 
requires any person removing liquid industrial waste from the premises 
of another to be licensed and bonded. Records of waste removal and 
disposal must be maintained, and vehicle operation and waste disposal 
must accord with applicable provisions of State law.
    The first State requirement for which CWTI seeks a finding of 
preemption, Michigan Compiled Laws Sec. 323.277(1), requires the 
marking of motor vehicles used to transport liquid industrial waste. On 
each side of the vehicle, the words ``licensed industrial waste hauling 
vehicle'' must be ``painted * * * in letters not less than 2 inches 
high.'' These words must be followed by the vehicle license number and 
a seal furnished by the State designating the year for which the 
license is issued. Apparently, the lettering is to remain on the truck 
at all times it is licensed to transport liquid industrial waste, 
whether or not it actually is carrying the regulated waste.
    Hazardous waste transportation within the State of Michigan is 
governed by Michigan Administrative Code Part 299.9400 (1991), 
promulgated pursuant to Michigan Compiled Laws, Secs. 299.501 through 
299.551 (cited by CWTI and commenters as Michigan Act 64, Public Act of 
1979).
    The definition of ``hazardous waste'' at Sec. 299.504(3) of the 
State statute essentially mirrors the definition under the Federal 
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et seq. 
See 42 U.S.C. 6903(5), (27). As under RCRA, see 42 U.S.C. 6921(a), 40 
CFR 261.20, 261.30, ``hazardous waste'' under Michigan law consists of 
``characteristic'' wastes, i.e., those meeting a criterion of 
ignitability, corrosivity, reactivity or toxicity, Mich. Admin. Code 
299.9203(1)(a), 299.9212, and ``listed'' wastes designated pursuant to 
an administrative finding of potential hazard, Mich. Admin. Code 
299.9203(1)(b), 299.9213, 299.9214. State regulations provide that any 
federally designated RCRA hazardous waste is a hazardous waste under 
Michigan law. Mich. Admin. Code 299.9208(1), 299.9209(1). Thus, while 
the director of the DNR may designate additional hazardous wastes, 
Mich. Admin. Code 299.9209(2), the regulations in question apply, at a 
minimum, to all RCRA hazardous wastes.
    Michigan Administrative Code part 299.9400 imposes business and 
vehicle licensing, recordkeeping and operational requirements on 
hazardous waste transporters. The second State requirement for which 
CWTI seeks a finding of preemption, Sec. 299.9406(6), requires the 
following marking on each side of the ``waste-hauling portion of the 
vehicle'':

    The words ``Hazardous Waste-Hauling Vehicle'' followed by the 
company name, city, and state in clearly legible letters not less 
than 5 centimeters high. * * * A transporter may remove this 
lettering for uses other than hazardous waste treatment [sic]1 
if such alternate uses are identified in the transporter's business 
or vehicle license.
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    \1\ CWTI advises that, according to the DNR, ``treatment'' 
should read ``transportation.'' 58 FR 6170 n. 6.

Mich. Admin. Code 299.9406(6). The lettering is to remain ``visible'' 
while the vehicle is licensed. Id.
    The two marking requirements apply, respectively, to motor vehicles 
licensed to haul liquid industrial waste or hazardous waste, as defined 
under Michigan law. The requirements apply to vehicles used for both 
bulk and non-bulk transportation, as those terms are defined in the 
HMR. See 49 CFR 171.8. With the limited exception in Sec. 299.9406(6) 
quoted above, they apply both when materials other than waste are being 
transported in the licensed vehicle and when the vehicle is empty.

B. HMTA Requirements for Motor Vehicle Marking and Placarding

    RCRA hazardous wastes, as designated pursuant to 42 U.S.C. 6921 by 
the Administrator of the U.S. Environmental Protection Agency (EPA), 
are hazardous materials 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).
    Under the HMR, if a hazardous waste meets the definition of any of 
the hazard-specific classes 1 through 8, it is subject to the marking, 
labeling and placarding requirements applicable to that class. 49 CFR 
172.101(c)(12), 173.2a. If the waste does not meet the definition of 
one of those classes, it is designated as a Class 9 hazardous material. 
49 CFR 173.140(b). Different vehicle marking and placarding 
requirements apply depending on the hazard class of the waste, the 
quantity, and whether it is transported in bulk or non-bulk packagings.
    The general marking requirements for bulk packagings in which 
hazardous waste is transported appear at 49 CFR 172.302. Under this 
section, only the identification number of the waste need be marked on 
the packaging; if the packaging is used under the terms of an 
exemption, the exemption number must be marked as well. 49 CFR 
172.302(a), (c); 172.504(f)(9). The packaging must remain marked until 
it has been cleaned of residue and purged of vapors, or refilled with a 
material requiring different markings, at which time the markings for 
the waste must be removed. 49 CFR 172.302(d). If the waste is 
radioactive, poisonous by inhalation, explosive or an elevated 
temperature material, additional marking requirements apply. 49 CFR 
172.310, 172.313, 172,320, 172.325. Labeling requirements apply to 
certain smaller bulk packagings. 49 CFR 172.400(a).
    A vehicle transporting hazardous waste in bulk must display 
placards designated in the HMR for the hazard class(es) of the waste. 
49 CFR 172.504. The vehicle must remain placarded until it is cleaned 
of residue and purged of vapors, or refilled with a material requiring 
different or no placards, at which time the placards for the waste must 
be removed. 49 CFR 172.514(b). If the waste is a Class 9 hazardous 
material in domestic transportation, the vehicle need not be placarded. 
49 CFR 172.504(f)(9). The required waste identification number may, 
however, be displayed on a placard rather than as a marking. 49 CFR 
172.336(b).
    Non-bulk packages of hazardous waste are subject to a number of 
requirements for marking, 49 CFR 172.301, 172.310, 172.312, 172.313, 
172.316, 172.320, 172.324, 172.325, and labeling, id., 172.400, 
172.402, 172.403, 172.404. No marking requirements, however, apply to 
the motor vehicle that transports them. Rather, the vehicle must 
display placards designated for the hazard class(es) of the waste being 
transported. 49 CFR 172.504(a). Exceptions from placarding may apply if 
the waste is an infectious substance, 49 CFR 172.500(b)(1), or if there 
is less than 454 kilograms (1001 pounds) of it, 49 CFR 172.504(c). 
Under certain circumstances, a ``Dangerous'' placard may be used in 
place of two or more hazard-specific placards. 49 CFR 172.504(b). If 
the waste is a Class 9 material in domestic transportation, the vehicle 
need not be placarded. 49 CFR 172.504(f)(9).

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, Public Law 93-633, section 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, Public Law 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. 
1804(a)(4), concerning ``covered subjects''] or section 105(b) [49 
U.S.C. 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), refers to 49 App. 
U.S.C. 1804(a)(4), which 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 any of 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. 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).
    HMTA preemption of non-Federal waste transportation regulation is 
further implemented through 49 CFR 171.3(c):

    With regard to hazardous waste subject to [the HMR], any 
requirement of a state or its political subdivision is inconsistent 
with [the HMR] if it applies because that material is a waste 
material and applies differently from or in addition to the 
requirements of [the HMR] concerning:
    (1) Packaging, marking, labeling, or placarding;
    (2) Format or contents of discharge reports (except immediate 
reports for emergency response); and
    (3) Format or contents of shipping papers, including hazardous 
waste manifests.

    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 a requirement of a State, a political 
subdivision of a State or an Indian tribe is preempted, 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, which RSPA has implemented 
through its regulations.

III. The CWTI Application and Public Comment

A. The CWTI Application

    CWTI states that hazardous materials vehicle marking is a ``covered 
subject'' under 49 App. U.S.C. 1804(a)(4)(B)(ii). State regulations 
pertaining to marking, CWTI continues, must be ``substantively the 
same'' as those of the HMR or they are preempted. CWTI then 
characterizes the Michigan requirements as marking requirements. It 
contends that they are not substantively the same as the Federal 
requirements, and therefore are preempted. CWTI supports its argument 
by citing 49 CFR 171.3(c)(1), quoted in Section II, above. This section 
prohibits regulation of waste materials as hazardous waste differently 
than the HMR with respect to, among other categories, marking, labeling 
and placarding.
    CWTI suggests that the required vehicle markings will confuse the 
public and emergency responders outside of Michigan. It contends that 
vehicles not carrying hazardous or liquid industrial waste but marked 
according to Michigan law are more likely to be, and have been, denied 
entry to non-hazardous waste disposal facilities, resulting either in a 
de facto vehicle dedication or in more trips, more mileage and a 
correspondingly greater public risk. CWTI asserts that by complying 
with the Michigan requirement to mark even trucks that are empty, 
transporters must violate the HMTA prohibition on representing that a 
hazardous material is present when it is not. See 49 App. U.S.C. 
1804(e); see also 49 CFR 171.2(f)(2).
    Finally, CWTI asserts that the Michigan requirements are not 
``otherwise authorized by Federal law,'' 49 App. U.S.C. 1811(a), by 
RCRA or any other Federal statute.

B. Comments Supporting Preemption

    Comments supporting preemption were received from three additional 
parties. The Hazardous Materials Advisory Council (HMAC), an 
organization representing ``shippers, carriers of all modes, container 
manufacturers and reconditioners, emergency response and waste clean-up 
companies,'' echoed CWTI's arguments that the Michigan requirements 
violate both 49 CFR 171.3(c)(1), which prohibits regulation of wastes 
as wastes in a manner different from the HMR, and 171.2(f)(2), which 
prohibits representing that hazardous materials are present when they 
are not.
    HMAC also cites 49 App. U.S.C. 1819, which establishes a working 
group to recommend uniform forms and procedures for State registration 
and permitting of hazardous materials transporters. The 
recommendations, when transmitted to the Secretary of Transportation, 
will form the basis for possible Department of Transportation 
regulations. After the effective date of any promulgated regulations, 
no State shall enforce any requirement relating to that subject matter 
unless it is ``the same as'' the regulations. 49 App. U.S.C. 1820(e). 
HMAC states that it is a non-voting member of the working group, and 
that the group has not contemplated regulations such as the Michigan 
marking requirements.
    Two private waste haulers, Price Trucking Corporation and Enmanco, 
state that they have been turned away from, or been delayed at, non-
hazardous waste disposal facilities due to the markings on their 
trucks, and that those markings have caused confusion outside of 
Michigan. Enmanco suggests that the markings are imprecise and cause 
confusion as to what the truck is carrying. Price Trucking joins CWTI 
and HMAC in arguing that compliance with the Michigan requirements 
brings a vehicle into violation of 49 CFR 171.2(f)(2).

C. Comments Opposing Preemption

    The Michigan DNR filed comments opposing preemption of its marking 
requirements.
    The DNR asserts that the application filed by CWTI is procedurally 
defective, in that it fails adequately to:
    1. State how CWTI is affected by the Michigan requirements.
    2. Set forth the text of the Michigan requirements for which a 
finding of preemption is sought.
    3. Specify the HMTA or HMR provisions with which the Michigan 
requirements are to be compared.
    4. Explain why the Michigan requirements should be preempted.

See 49 CFR 107.203(b)(2), (3), (4), (5).
    On the merits of the determination, the DNR contends that the 
marking requirements serve important public interests. First, the 
markings warn emergency responders and the public in the event of an 
accident. The DNR asserts that its requirements are particularly 
warranted for vehicles transporting Class 9 hazardous wastes, or 
hazardous wastes in non-bulk containers. These vehicles are not 
required to be placarded under the HMR, resulting, according to the 
DNR, in a situation that is ``inimical to the public health, safety and 
welfare, and the public interest.'' Without the markings required under 
Michigan law, the DNR argues, a vehicle transporting Class 9 or non-
bulk wastes will inadequately communicate its hazards to those arriving 
at an accident scene.
    The DNR further suggests that the markings will alert the public to 
the dual activities of those waste transport vehicles that also are 
used to carry gravel, topsoil, sand, food or other commodities. They 
will allow those engaging transportation services better to determine 
the past uses of a vehicle, and will assist sanitary landfills in 
preventing the receipt of hazardous wastes.
    The DNR asserts that there is no conflict between State and Federal 
regulation, as the Department of Transportation ``has chosen not to 
fill this important regulatory void.'' It states that the benefits of 
the Michigan marking requirements outweigh a minimal regulatory burden.

D. Rebuttal Comments

    In rebuttal, CWTI responds that Preemption Determination No. 2 (PD-
2(R)), 58 FR 11176 (Feb. 23, 1993), has affirmed the CWTI's 
``standing'' to file applications for preemption determinations on 
behalf of its members. In that ruling, concerning a State of Illinois 
hazardous waste manifest at variance with the uniform Federal manifest, 
RSPA, according to CWTI, affirmed its broad reading of the ``directly 
affected'' standard for who may apply for a preemption determination. 
CWTI also states that in its application it cited the State 
requirements for which it seeks a finding of preemption, that the cited 
requirements were appended to the application, and that a ``plain 
reading'' indicates the HMR provisions to which comparison is to be 
made, namely, those governing marking, labeling and placarding.
    CWTI disputes the DNR claim that the required markings convey 
accurate hazard warning information. Specifically, it suggests that the 
information will be inaccurate when the vehicle is empty or contains 
something other than the wastes indicated by the marking. It notes that 
while vehicles transporting Class 9 hazardous materials are not 
required to be placarded under the HMR, not all wastes covered by the 
marking requirements are Class 9 materials. It states that the DNR's 
purported concerns about cross-contamination are not relevant to 
vehicles used to transport hazardous wastes in non-bulk packagings. 
Finally, CWTI contends that Michigan's, and indeed RSPA's, judgments as 
to the adequacy of the Federal vehicle marking system are not pertinent 
to determining preemption in a ``covered subject'' area. RSPA's 
determination, CWTI asserts, is limited to ``whether the non-federal 
requirement is `substantively the same as' the federal standard.'' 
Finally, CWTI reiterates its position that neither RCRA nor its 
implementing regulations ``otherwise authorizes'' the Michigan 
requirements at issue.

IV. Discussion

A. Procedural Issues

    The DNR asserts that CWTI, contrary to 49 CFR 107.203(b)(5), has 
not adequately stated how it is affected by the Michigan marking 
requirements for which it seeks a finding of preemption. In its 
application, CWTI states that it is

    A not-for-profit association that represents approximately 2,000 
waste services companies throughout the United States and Canada. 
Members of the Institute are commercial firms specializing in the 
transportation of hazardous waste, by truck and rail, from its point 
of generation to its management destination. Our members are both 
private and for hire carriers that operate in interstate and 
intrastate commerce, including points to and from and through 
Michigan.

    This averment is sufficient to inform RSPA and interested members 
of the public of how CWTI is affected by the Michigan requirements. 
Beyond considering simply whether petitioner has stated its interest, 
however, it is appropriate to address the DNR's implied claim: That 
CWTI lacks standing to apply for the preemption determination.
    The HMTA, as originally enacted, provided for the preemption of 
non-Federal requirements that were ``inconsistent'' with the HMTA or 
the HMR. HMTA, Public Law 93-633, section 112(a), 88 Stat. 2161 (1975). 
Preemption questions were decided by RSPA, in accordance with its 
regulations, through a process that resulted in the issuance of 
inconsistency rulings. The 1990 amendments to the HMTA elevated the 
advisory inconsistency ruling to that of a ``binding administrative 
process for determining whether State and local requirements are 
preempted.'' H.R. Rep. No. 444, 101st Cong., 2d Sess. 1 (1990).
    As amended, the HMTA provides:

    Any person, including a State or political subdivision thereof 
or Indian tribe, directly affected by any requirement of a State or 
political subdivision or Indian tribe, may apply to the Secretary, 
in accordance with regulations prescribed by the Secretary, for a 
determination of whether that requirement is preempted by [the 
HMTA].

49 App. U.S.C. 1811(c). The HMTA standing test, then, is that a person 
be ``directly affected'' by a non-Federal requirement for which it 
seeks a preemption determination. This provision codified and amended 
RSPA's prior practice in considering applications for inconsistency 
rulings, in which RSPA interpreted the standing requirement broadly.
    Absent dispute with the facts of CWTI's averment, it is established 
that CWTI's members include those who transport hazardous waste in or 
through Michigan by motor vehicle. As CWTI notes, in PD-2(R) RSPA found 
that CWTI had standing on behalf of its members to challenge Illinois' 
enforcement of a requirement to use a State hazardous waste manifest at 
variance with that countenanced by the HMR. 58 FR at 11181-82. CWTI has 
standing sufficient for the present application.
    The DNR claims that CWTI has not set forth the text of the Michigan 
requirements for which it seeks a finding of preemption. CWTI's 
application cites to the two provisions of Michigan law containing the 
marking requirements at issue, 58 FR at 6170 n. 4 & 5, with the text of 
those provisions attached. The application as submitted did not include 
the full text of Michigan statutes and rules (such as definitions and 
jurisdictional sections) necessary to understand the scope of the two 
provisions. For RSPA's purposes, this deficiency was remedied by CWTI 
in response to a July 7, 1993 letter from the RSPA Office of Chief 
Counsel to CWTI, a copy of which was sent by certified mail to the DNR. 
Were an interested party prejudiced in its ability to comment by the 
absence from the docket of these supporting materials, a suitable 
procedural remedy might be in order. The DNR has not alleged prejudice 
to itself from CWTI's failure to include these materials with its 
application, and indeed cannot reasonably claim to lack access to its 
own statutes and administrative rules. Accordingly, CWTI's compliance 
with 49 CFR 107.203(b)(2) is adequate.
    The DNR argues that the CWTI application did not ``specify each 
requirement'' of the HMR with which CWTI seeks the Michigan marking 
requirements to be compared. See 49 CFR 107.203(b)(3). The application 
did not include citations to specific HMR provisions. It did, however, 
state that the HMR requirements at issue were, for instance, those ``in 
certain covered subject areas including the `marking' of hazardous 
materials.'' Marking, labeling and placarding requirements are set 
forth concisely in the HMR at 49 CFR part 172 subparts D, E and F, 
respectively. In addition, the non-Federal requirements on their face 
pertain to motor vehicle marking and placarding. RSPA has been able to 
identify the HMR provisions relevant to its analysis; the DNR has not 
suggested that its ability to comment on CWTI's application has been 
undermined by the application's failure to specify the Federal 
provisions at issue. Accordingly, compliance with Sec. 107.203(b)(3) is 
adequate.
    Finally, the DNR asserts that CWTI has not sufficiently explained 
why the Michigan requirements should be preempted. The CWTI application 
contends that these requirements should be preempted because they 
concern a covered subject and are not ``substantively the same'' as HMR 
requirements. It also argues that the Michigan requirements violate 49 
CFR 171.3(c)(1) by regulating waste materials in a manner different 
from the HMR, and that they conflict with 49 CFR 171.2(f)(2), by 
requiring a vehicle to represent that a hazardous material is aboard at 
times when it is not. Finally, the application asserts that the 
requirements will confuse the public and emergency responders, and 
either will result in more vehicle mileage and correspondingly greater 
public risk, or will constitute a burdensome de facto vehicle 
dedication requirement. These arguments meet the procedural requirement 
of 49 CFR 107.203(b)(4).

B. ``Covered Subject'' Test

    The 1990 amendments to the HMTA strengthened Federal preemption 
with respect to five ``covered subjects.'' In these five areas, 
Congress recognized ``a compelling need for standardized requirements 
relating to certain areas of the transportation of hazardous 
materials.'' H.R. Rep. No. 444, 101st Cong., 2d Sess. at 33-34. 
Congress explained its rationale for the 1990 amendments to the HMTA, 
including broad Federal preemption of requirements concerning ``covered 
subjects,'' with findings quoted in Section II, above. See 49 App. 
U.S.C. 1801 note.
    If the non-Federal requirement regulates in the area of a covered 
subject, a strict preemption standard applies: the requirement is 
preempted unless it is ``substantively the same'' as applicable 
requirements under the HMTA and HMR. 49 App. U.S.C. 1804(a)(4)(A). 
```Substantively the same' means that the non-Federal requirement 
conforms in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d). The non-Federal regulations must contain ``the same 
substance'' as the Federal regulations. Colorado Public Utilities 
Comm'n v. Harmon, above, 951 F.2d at 1578.
    In PD-2(R), RSPA considered whether the State of Illinois' Uniform 
Hazardous Waste Manifest was preempted under the HMTA. 58 FR 11176. The 
Illinois manifest differed from the Federal manifest in requiring that 
additional manifests rather than continuation sheets be used, and that 
the figure for the total quantity of waste documented on the manifest 
be rounded to the nearest whole number in the units used. 58 FR at 
11176-77.
    Because the Illinois requirements concerned the number and content 
of shipping documents, a ``covered subject,'' the question was whether 
the Illinois manifest was ``substantively the same'' as the Federal 
Uniform Hazardous Waste Manifest required by the HMR. 49 App. U.S.C. 
1804(a)(4)(B). RSPA concluded that the differences were not de minimis 
and not merely editorial, but ``significantly alter[ed]'' both the 
information supplied on the manifest and the manifest format, and 
therefore were preempted. 58 FR at 11183.
    ``The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials'' is a ``covered subject'' under 49 
App. U.S.C. 1804(a)(4)(B). Congress, identifying this area as one in 
which uniformity is critical, stated:

    [C]onsistency in regulations pertaining to [packing, repacking, 
handling, labeling, marking and placarding] are [sic] needed to 
promote safety at all stages of hazardous materials transportation. 
Conflicting requirements for any of these subjects will confuse all 
who come into contact with hazardous materials, including shippers, 
carriers, and other handlers of such materials in transit. Of major 
importance as well is the need for consistency for those who respond 
to emergencies involving hazardous materials. Different requirements 
in these areas would lessen the ability of emergency responders 
quickly to identify hazardous materials, thus impairing their 
ability promptly and effectively to respond to any emergency.

H.R. Rep. No. 444, 101st Cong., 2d Sess. at 34.
    In designating the marking, labeling and placarding of hazardous 
materials as an area of particular Federal primacy, the 1990 amendments 
essentially codified RSPA's long-standing position that this area is 
one ``of exclusive HMTA domain.'' IR-3, 46 FR 18918, 18924 (Mar. 26, 
1981).
    RSPA's inconsistency rulings uniformly found hazard warning 
requirements different from HMR requirements to be preempted. See IR-
31, 55 FR 25572 (June 21, 1990) (placard); IR-30, 55 FR 9676 (Mar. 14, 
1990) (sign); IR-24, 53 FR 19848 (May 31, 1988) (placard); IR-22, 52 FR 
46574 (Dec. 8, 1987) (placard); IR-3, 46 FR 18918 (identification 
numbers); cf. IR-32, 55 FR 36736 (ordinance requiring placarding in 
accordance with HMR not preempted).
    In the present case, the requirements at Michigan Administrative 
Code 299.9406(6) and Michigan Compiled Laws Sec. 323.277(1) compel 
trucks used to transport hazardous wastes and liquid industrial wastes 
to bear on each side ``Hazardous Waste-Hauling Vehicle'' and ``licensed 
industrial waste hauling vehicle,'' respectively. These requirements, 
according to the DNR, ``facilitate safe and proper emergency response 
activities by providing a hazard warning to the public concerning the 
content of a vehicle transporting hazardous waste.'' They are marking 
requirements within the meaning of 49 App. U.S.C. 1804(a)(4)(B)(ii), 
because they direct that language regarding the hazards of a material 
in transportation be marked in a way that is likely to be understood by 
emergency responders and the public as hazard communication 
information. Cf. Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d 
at 1583 (the preemption inquiry turns not on the purpose of the non-
Federal requirement, but on its effect).
    Markings, when required under the HMR, generally must be placed on 
the package. 49 CFR 172.301(a), 172.302(a). In bulk highway transport, 
markings are placed directly on the cargo tank or portable tank, 49 CFR 
172.302(a), 172.326; vehicles transporting hazardous materials in non-
bulk packagings are not marked, 49 CFR 172.301(a), see generally 49 CFR 
172.300-.338. Conversely, markings required by Michigan need not appear 
on the packaging; they may be placed elsewhere on the waste-hauling 
vehicle. Mich. Comp. Laws Ann. Sec. 323.277(1), Mich. Admin. Code 
299.9406(6). The location of the markings, however, does not in itself 
determine whether or not they are markings within the meaning of 49 
App. U.S.C. 1804(a)(4)(B)(ii). What is important is that they (1) are 
in a location where they purport to communicate hazards posed by the 
material in the vehicle; and (2) use language to do so that may be 
confused with that of HMR-required markings (see 49 CFR 
172.101(c)(9)(requiring use of word ``waste'' in proper shipping name 
for hazardous wastes). In this instance, the risk of confusion is 
present even if the markings appear in a location other than that 
specified in the HMR.
    While the director of the DNR is authorized to designate a material 
as a ``hazardous waste'' under Michigan law even if it is not a RCRA 
hazardous waste, the universe of State ``hazardous waste'' encompasses 
all RCRA hazardous wastes. Mich. Admin. Code 299.9104(d), 299.9203(1), 
299.9209(1), 299.9213(1). All materials subject to EPA manifest 
requirements at 40 CFR Part 262 are hazardous materials, 49 CFR 171.8 
(``Hazardous waste,'' ``Hazardous material''); RCRA hazardous wastes 
are subject to EPA manifest requirements. 40 CFR 262.20, 263.20. Thus, 
RCRA hazardous wastes are hazardous materials, and the marking 
requirement of Michigan Administrative Code 299.9406(6) applies to the 
transportation of hazardous materials.
    Michigan Compiled Law 323.277(1) applies to ``any liquid waste, 
other than unpolluted water, which is produced by or incident to or 
results from an industrial or commercial activity or the conduct of any 
enterprise.'' Mich. Comp. Laws Ann. Sec. 323.271(b). From this broad 
definition, it may be inferred that many ``liquid industrial wastes'' 
are not hazardous materials under the HMTA. At the same time, the term 
encompasses liquid hazardous wastes, which, as noted above, are 
hazardous materials. This marking requirement thus applies to a 
significant number of liquid wastes that are hazardous materials. 
Therefore, the two requirements concern the ``marking * * * of 
hazardous materials,'' a covered subject under 49 App. U.S.C. 
1804(a)(4)(B)(ii).
    The two Michigan provisions require that motor vehicles used to 
transport certain hazardous materials be marked in a manner different 
from the HMR. The HMR require only that the vehicle be placarded to 
communicate the hazard class(es) of the waste(s) being transported and, 
for bulk transport, that the identification numbers of the waste(s) on 
board be displayed. 49 CFR 172.302(a), 172.504(a); see Section I.B, 
above. In some cases, no placarding is required, or the ``Dangerous'' 
placard is authorized. 49 CFR 172.500(b)(1), 172.504(b), 172.504(c), 
172.504(f)(9). Placards and identification number markings may not be 
displayed if no hazardous wastes are on board. 49 CFR 171.2(f)(2). The 
Michigan provisions require vehicles to be marked with descriptions, 
formulated by the State, intended to communicate that wastes are, or 
have been, on board; these descriptions must remain on the vehicle even 
when it is empty. These differences are not de minimis or editorial. 
The Michigan requirements, as applied to materials designated as 
hazardous materials under the HMTA, are not ``substantively the same'' 
as the Federal requirements, and are preempted under 49 App. U.S.C. 
1811(a)(3).

C. ``Obstacle'' Test

    ``Liquid industrial waste,'' defined at Sec. 323.271(b), is a broad 
category that, as indicated by the parties, includes wastes that are 
not hazardous materials under the HMTA. With respect to the 
Sec. 323.277(1) marking requirement, the above finding of preemption 
pertains only to the marking of vehicles in which hazardous materials 
are transported. In determining whether the HMTA preempts the 
application of Sec. 323.277(1) to vehicles transporting only liquid 
industrial wastes that are not hazardous materials, the analysis 
differs.
    The marking requirement of Sec. 323.277(1) here does not concern 
the ``marking * * * of hazardous materials,'' a covered subject under 
49 App. U.S.C. 1804(a)(4)(B), because we are concerned with the 
situation where the vehicle is used to transport only liquid industrial 
wastes that are not hazardous materials. If the marking requirement 
were an adoption or a duplication of an HMR marking requirement, the 
effect of the requirement would be to treat the regulated materials as 
hazardous materials. This would constitute, in effect, the 
``designation * * * and classification of hazardous materials,'' also a 
covered subject under Sec. 1804(a)(4)(B). Here, the Michigan marking 
requirement differs from HMR-specified markings and applies to 
materials that are not hazardous materials. No covered subject is 
involved and, accordingly, the ``substantively the same'' standard is 
not applicable.
    As discussed in Section II, above, application of the marking 
requirement to vehicles transporting only liquid industrial wastes that 
are not hazardous materials nevertheless is preempted by the HMTA if:

    (1) Compliance with both the State * * * requirement and any 
requirement of [the HMTA] or of a regulation issued under [the HMTA] 
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 
regulations issued under [the HMTA].

49 App. U.S.C. 1811(a).
    The marking requirement, as applied to liquid industrial wastes 
that are not hazardous materials, ``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, above, 951 F.2d at 
1580, and therefore is preempted.
    The purpose of the HMTA is ``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. The single, comprehensive body of requirements concerning 
hazardous materials shipping papers, marking, labeling, and placarding 
is at the heart of the regulatory framework established in the HMR to 
achieve this purpose. Uniformity in this area is critical to ensure 
that hazardous materials are handled appropriately during 
transportation and that emergency responders can take efficient and 
effective response action when an accident occurs. See generally H.R. 
Rep. No. 444, 101st Cong., 2d Sess. at 34 (quoted above).
    For this reason, the Office of Hazardous Materials Safety 
consistently has expressed the position that the Federal role in 
designating hazardous materials and applying marking, labeling and 
placarding requirements to those materials is exclusive. E.g., IR-32, 
55 FR 36736; IR-29, 55 FR 9304 (Mar. 12, 1990); IR-28, 55 FR 8884 (Mar. 
8, 1990); IR-3, 46 FR 18918 (Mar. 26, 1981); IR-2, 44 FR 75566 (Dec. 
20, 1979). This principle has been judicially affirmed. Missouri 
Pacific RR Co. v. Railroad Comm'n of Texas, 671 F.Supp. 466, 481-82 
(W.D. Tex. 1987), aff'd 850 F.2d 264 (5th Cir. 1988), cert den. 109 
S.Ct. 794 (1989). Congress emphasized the importance of uniformity in 
1990, when it amended the HMTA to identify hazardous materials 
designation and marking, labeling and placarding as ``covered 
subjects'' under essentially exclusive Federal jurisdiction.
    RSPA has determined that hazardous materials classification by 
States and localities in a manner different from the HMR undermines the 
framework of hazard identification the HMR establishes:

    The key to hazardous materials transportation safety is precise 
communication of risk. The proliferation of differing State and 
local systems of hazard classification is antithetical to a uniform, 
comprehensive system of hazardous materials transportation safety 
regulation. This is precisely the situation which Congress sought to 
preclude when it enacted the preemption provision of the HMTA.

IR-6, 48 FR 760, 764 (Dec. 29, 1982).

    If every state were to assign additional requirements on the 
basis of independently created and variously named subgroups of * * 
* materials, the resulting confusion of regulatory requirements 
would lead ineluctably to the increased likelihood of reduced 
compliance with the HMR [a]nd subsequent decrease in public safety.

IR-15, 49 FR 46660, 46660 (Nov. 27, 1984). While these rulings 
concerned the attempt to apply non-Federal requirements different from 
the HMR to hazardous materials, the rationale applies equally to 
marking requirements imposed on materials that are not hazardous 
materials.
    Application of the Michigan marking requirement, even to vehicles 
transporting only liquid industrial wastes that are not hazardous 
materials, is detrimental to the purposes of the HMTA. The Michigan 
statute requires a vehicle marking that announces the potential hazard 
of an ``industrial waste.'' Under the HMR, the term ``waste'' is a 
component of the proper shipping name of any RCRA hazardous waste. 49 
CFR 172.101(c)(9). ``Liquid industrial waste,'' however, does not 
conform to markings specified in the HMR. This is tantamount to the 
creation of an additional class of hazardous materials with its own 
marking requirements. A proliferation of vehicles bearing non-
conforming markings would undermine efforts to educate hazardous 
materials employees and emergency responders in the single, uniform 
nomenclature of hazard communication contained in the HMR. Shippers, 
consignees, law enforcement officers and emergency responders are 
familiar with HMR-specified markings, which are referable to a single, 
national body of regulations. Those encountering vehicles with the 
``liquid industrial waste'' marking may be uncertain as to whether the 
marking indicates the presence of a hazardous material and, if so, what 
the material might be. Confusion as to whether the marking is an HMR-
prescribed marking introduces ambiguity into the regulatory framework. 
This ambiguity in the long run tends toward reduced compliance. 
Finally, requiring the marking of vehicles transporting ``any liquid 
waste * * * produced by * * * the conduct of any enterprise,'' Mich. 
Comp. Laws Ann. Sec. 323.271(b), expands the universe of vehicles 
displaying hazard warnings to include those that pose no or little risk 
to health, safety or property, diminishing the attention that vehicle 
hazard warnings under the HMR framework should and do command. In all 
of these respects, a greater risk to public safety is the result.
    When a vehicle marking is required, sufficiently similar to HMR 
markings that it appears to be a hazard warning, but that does not 
conform to HMR markings, the purposes of the HMTA are undermined. The 
marking requirement of Sec. 323.277(1), as applied to vehicles 
transporting liquid industrial wastes that are not hazardous materials, 
stands as an obstacle to accomplishing the purposes of the HMTA, and 
therefore is preempted.
    Because we find that the Michigan marking requirement is preempted 
as an obstacle to the HMTA, we need not address the argument that it 
fails the ``dual compliance'' test.

D. Other Arguments

    The DNR suggests that there is no conflict between the Michigan 
requirements and the HMR because the former simply ``fill th[e] 
important regulatory void'' that the HMR allegedly do not address. The 
DNR does not explain the ``void'' to which it refers. Presumably, it is 
the absence of language on a vehicle describing the wastes it carries, 
specifically for vehicles shipping Class 9 or non-bulk wastes not 
subject to placarding requirements.
    The HMR are a comprehensive framework of packaging, hazard 
communication and transportation controls directed to ensuring the safe 
and efficient movement of hazardous materials. Subparts A through G of 
49 CFR part 172 establish a comprehensive system of hazard 
communication through hazardous materials nomenclature, shipping paper, 
marking, labeling, placarding and emergency response requirements 
reflecting a considered balance among regulatory goals of risk 
minimization, feasibility of administration and compliance, and 
regulatory cost.
    The structure of the HMR is reflected in the statutory language 
identifying hazardous materials ``packing, repacking, handling, 
labeling, marking, and placarding'' as a covered subject. 49 App. 
U.S.C. 1804(a)(4)(B)(ii). With respect to this ``subject,'' there is no 
regulatory void in the HMR; there is an encompassing, integrated 
framework of regulation.
    The fact that the HMR do not require additional descriptive 
markings on vehicles transporting hazardous wastes simply means ``that 
the Secretary has determined that no regulation is needed on that 
topic.'' IR-22, 54 FR 26698, 26703 (June 23, 1989) (decision on 
appeal). For example, the exception of Class 9 materials from 
placarding requirements is not an oversight, but the result of a 
conscious decision implemented by regulation. 49 CFR 172.504(f)(9).
    CWTI argues that the Michigan requirements will confuse emergency 
responders and the public; that they will result in additional mileage 
for marked trucks and correspondingly greater public risk; or, in the 
alternative, that they constitute a de facto vehicle dedication 
requirement.
    The DNR, conversely, claims that the requirements serve important 
public interests by informing emergency responders, the public, 
landfill operators and those seeking transportation services that 
marked vehicles contain or have contained wastes. It contends that the 
public benefits of the requirements outweigh the minimal regulatory 
burden that they impose.
    Whether Michigan's requirements confuse or, to the contrary, inform 
responders and the public, whether in fact they increase vehicle 
mileage and public risk, and whether they constitute a significant 
burden on the regulated community are not relevant to the preemption 
determination concerning a covered subject. In prescribing the 
``substantively the same'' standard, Congress has concluded as a matter 
of law that in the area of covered subjects, uniformity is paramount 
and Federal regulation shall prevail. Colorado Pub. Util. Comm'n v. 
Harmon, above, 951 F.2d at 1582-83. This is true as well with respect 
to marking requirements subject to the ``obstacle'' test. PD-1(R), 58 
FR 32418, 32420 (June 9, 1993) (preemption under the HMTA turns on the 
effect, not the purpose, of the non-Federal requirement) (denying 
petition for reconsideration). ``The relative importance to the State 
of its own law is not material when there is a conflict with a valid 
federal law, for the Framers of our Constitution provided that the 
federal law must prevail.'' Colorado Pub. Util. Comm'n v. Harmon, 
above, 951 F.2d at 1583 (quoting Free v. Bland, 369 U.S. 663, 666, 8 
L.Ed.2d 180 (1962)).

V. Ruling

    For the reasons set forth above, RSPA finds that Michigan Compiled 
Laws Sec. 323.277(1) and Michigan Administrative Code 299.9406(6), 
requiring the marking of motor vehicles used to transport, 
respectively, ``liquid industrial wastes'' and ``hazardous wastes,'' 
are preempted by 49 App. U.S.C. 1811(a)(3). These marking requirements 
are not ``substantively the same as'' Federal marking, labeling and 
placarding requirements. As applied to vehicles used to transport only 
liquid industrial wastes that are not hazardous materials, the marking 
requirement at Sec. 323.277(1) is preempted as an obstacle to 
accomplishing the purposes of the HMTA.

VI. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by 
RSPA's decision on CWTI's 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 February 2, 1994.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 94-2907 Filed 2-8-94; 8:45 am]
BILLING CODE 4910-60-P



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