Michigan Marking Requirements for Vehicles Transporting Hazardous and Liquid Industrial Wastes; Notice
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)]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-2907]
[Federal Register: February 9, 1994]
Department of Transportation
Research and Special Programs Administration
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.
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.
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
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
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.
\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
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
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.
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
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
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
(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
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
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.
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
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
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
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
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
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.
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
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
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
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
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,
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.
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.
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
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
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
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
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
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)).
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]
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