William R. Maurer [1]

1. The Problem

Shortly after the terrorist attacks against the United States on September 11, 2001, Attorney General John Ashcroft announced that twenty people had been arrested and charged with fraudulently obtaining licenses to haul hazardous waste materials. Included in this group were some individuals suspected of having links to the terrorists who staged the September 11th attacks [2]. These arrests resulted from the arrest of a man who had recently obtained a permit to haul hazardous waste and who was suspected of having ties to an associate of Osama Bin Laden [3]. The license held by that man permitted him to haul materials including dynamite, gases, and toxic and radioactive materials [4].

In light of these events, the Federal Bureau of Investigation warned state and local law enforcement authorities and the American Trucking Association to watch for anything suspicious regarding haulers of hazardous waste, biological agents and other hazardous materials [5].

The Justice Department's announcement raised the prospect of a previously unimagined threat - terrorists seizing control over trucks and railcars full of hazardous materials. The fact that so many people had allegedly obtained licenses to haul hazardous materials, and that some may have been connected in some way to the terrorist activities of September 11th, alerted the nation of a new potential threat from the roads and railyards. "The fear expressed by law enforcement officials . . . is that a truck loaded with dangerous material could end up in the hands of terrorists similar to those who turned commercial airplanes into weapons of mass destruction on Sept. 11." [6]

Calls for legislative action were not long in coming [7]. Congress is now faced with the difficult task of addressing new threats to the efficient movement of hazardous materials in an area of the law that is already heavily regulated. In this environment, Congress must address whether it can fashion an appropriate response within the requirements of our federal system and consistent with the individual rights of our citizens. Moreover, it must deal with a more fundamental question: is there actually anything more that Congress can do?

B. The Response

There have already been some efforts in Washington to address the perceived threat of terrorists obtaining control of hazardous wastes.

On the regulatory front, the Federal Motor Carrier Safety Administration (FMCSA), formerly primarily concerned with preventing commercial vehicle accidents, sent out more than 400 field agents to check the security of approximately 80,000 companies that haul hazardous materials. At the same time, thousands of truck drivers carrying such materials were subjected to increased security checks at weigh stations [8].

Also, immediately following the September 11th attacks, the Department of Energy pulled trucks carrying radioactive waste off the road and placed a moratorium on further shipments [9]. Such shipments have only recently resumed [10].

Congress has also acted, holding hearings on bus and truck security and hazardous materials licensing [11]. New security measures considered at the hearing included requiring background checks for truck drivers seeking licenses to haul hazardous materials, requiring companies that haul hazardous materials to create security plans, improving the tracking of the movement of hazardous materials (such as through the use of electronic tags or satellites), increasing funding for hazardous material handling and training programs, and creating potential federal penalties for the hijacking of trucks carrying hazardous materials [12]. However, during this hearing there was clear recognition of the enormity of trying to monitor every shipment of hazardous materials in this country. As Senator Breaux remarked: "It would be a logistical impossibility to have law enforcements [sic] check every or even most of the 800,000 shipments of hazardous materials or the millions and millions of truck movements annually." [13]

On October 18, 2001, Senator Hatch introduced the "Hazardous Material in Transportation Protection Act of 2001." The bill would amend the U.S. Code to regulate the issuance of licenses to operate motor vehicles transporting hazardous materials [14]. Specifically, this bill would prohibit the states from issuing a license to operate a motor vehicle transporting hazardous material unless the Secretary of Transportation has first determined that the individual does not pose a security risk warranting denial of the license [15]. The Secretary would determine the security risk of the individual by means of a background records check. The records check would include the applicant's relevant criminal history - in the case of an alien, the alien's status under U.S. immigration laws - and a general check of international criminal databases [16].

Transportation Secretary Mineta has also proposed hazardous materials legislation, albeit with more of an emphasis on reducing the amount of undeclared or hidden shipments [17]. Secretary Mineta's proposed legislation would, among other things, strengthen DOT inspectors' authority to inspect packages in transportation, provide these inspectors with authority to stop seriously unsafe transportation, increase the maximum fines for hazardous materials violations, and specifically allow participation by the states in a coordinated program of hazardous material carrier registrations and permits [18].

C. The Current Statutory and Regulatory Framework

The act that governs most issues concerning the transportation of hazardous materials in the United States is the Hazardous Materials Transportation Act (HMTA), Pub. L. No. 93-633, 88 Stat. 2156 (1975), 49 U.S.C. §§5101-5127 (formerly codified at 49 U.S.C. §1801 et seq.).

1. History and Purpose of the HMTA
Congress has been regulating the transportation of hazardous materials in interstate commerce for over 100 years, first passing legislation in 1871 to limit the transportation of explosives and similar products on vessels [19]. In 1909, Congress expanded its concerns to shipments over land, and in 1958 to the transport of hazardous materials by air [20]. In 1960, Congress prescribed the transportation of radioactive material by passenger carriers (with the exception of certain Atomic Energy Commission-supervised shipments). [21]

By 1970, a piecemeal, but broad, policy of control and regulation was in effect. However, responsibility for implementing the various forms of federal regulation was divided among a number of different federal agencies. Thus, in 1970, Congress passed and the President signed the Hazardous Material Transportation Control Act of 1970 (49 U.S.C. §§1761-62), which authorized and required the Department of Transportation to improve intermodal information gathering and dissemination about hazardous materials and accidents and which required the Department to make annual reports on the activities of the regulatory bodies dealing with the transportation of hazardous materials [22]. By 1973, the Department felt that more was needed, and the administration drafted and sent forward legislation to facilitate further intermodal coordination and more pervasive legislation [23].

Congress's concern was simple:

The prime difficulty . . . is that the fragmentation of regulatory power among the agencies dealing with the different modes of transportation blocks a coherent approach to the problem and creates a mass of conflicts of jurisdiction and regulation. The problem is heightened by the fact that most shipments involve more than one mode of transportation and thus are faced with differing regulations and enforcement authorities at different stages of a trip [24].

In response, Congress enacted the HMTA in 1975 "in an effort to develop a national regulatory scheme for the transportation of hazardous substances." [25] Congress has amended the act in 1990 and restructured it in 1994; [26] however, the purpose of the HMTA remains, as Congress phrased it in 1990,

to authorize the Department of Transportation (DOT) with the regulatory and enforcement authority to protect the public against the risks of all forms of hazardous materials transportation, and to preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations [27].

2. The HMTA
The HMTA establishes uniform, national rules for the transportation of hazardous materials and, together with its accompanying regulations, creates an elaborate scheme for the designation, handling, packaging, labeling, and shipping of hazardous materials [28]. Specifically, the act gives the Secretary of Transportation extensive authority to regulate the transportation and handling of hazardous materials [29]. The act grants to the Secretary the authority to designate materials, which, by nature of their quantity and form, are hazardous to public health and safety [30]. The Secretary may adopt regulations covering all aspects of safe transportation and handling of these materials by all modes, including packaging, labeling, marking and routing [31]. The act also permits the Secretary to issue civil penalties for violations, as well as the criminal penalties for willful violation of the statute or its regulations [32].

The act requires the Secretary to promulgate regulations that adequately protect the public [33]. Each Secretary has chosen to satisfy this mandate through an exhaustive regulatory scheme, covering substantially all aspects of hazardous materials transportation (with the notable exception of the issuance of licenses for hauling hazardous materials, which are the prerogatives of the states).
In short, the HMTA is primarily an authorization of the Secretary of Transportation to issue rules to implement a unified, cohesive, and pervasive regulatory scheme [34].

3. Hazardous Materials Regulations
Regulations promulgated by the Department of Transportation under the HMTA are codified in Title 49, Code of Federal Regulations, Subchapter C. These regulations are, in the 2000 CFRs, over 900 pages long. 49 C.F.R. §172.101 lists the hazardous materials subject to the regulations. The list itself is over 140 pages long and contains such seemingly innocuous items as electric wheel chairs, refrigerating machines, seed cake, and matches. The list also includes many obviously harmful materials, such as arsenic, rockets, radioactive materials, and cyanide.

The Hazardous Material Regulations, in general, define and list those materials deemed hazardous in transport and include specific and detailed provisions for the carriage of hazardous materials by roadway. Set forth in exhaustive detail, complete with diagrams, are the requirements for the testing of containers used in shipment, obtaining shipping papers and certification, the marking and placarding of vehicles, the inspection of vehicles, the training of tank truck drivers transporting flammable liquids, the loading, unloading and storage of hazardous materials, and the immediate reporting of hazardous materials accidents. The transporting of certain extremely hazardous materials by common carrier is prohibited altogether. The regulations also establish a system of preferred routes for the carriage of radioactive materials, comprising the interstate highway system or state-designated routes. The regulations also specify that all shipments must be transported and delivered without unnecessary delay, from and including the time of commencement of the loading of cargo until its final discharge at its destination.

D. Federalism Issues in Hazardous Material Transportation

For purposes of increasing security in light of the threat of terrorism to the transportation of hazardous materials, attempts by Congress to legislate in areas traditionally seen as the province of the States would raise Federalism issues. However, while there are state and federal issues, the extent to which Congress may enact new legislation preempting state action is clear.

The 1990 amendments to the HMTA, among other things, rewrote the standards for determining when federal law preempts state regulations relating to hazardous material transportation. Specifically, under the Section 5125 of the HMTA,

a requirement of a State, political subdivision of a State, or Indian tribe is preempted if (1) complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter or a regulation prescribed under this chapter is not possible; or (2) the requirement of the State, political subdivision, or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter or a regulation prescribed under this chapter [35].

This section also addresses a number of other preemption issues, including specific types of state regulation that are automatically preempted if the are not substantively the same as the corresponding federal, preemption waivers, and judicial review of preemption decisions by the Secretary [36].

(The other section of the HMTA that deals with issues of federal preemption is Section 5119, which prescribes a "working group of State and local government officials" to help the Transportation Secretary devise "uniform forms and procedures" by which all states will "register persons that transport . . . hazardous material by motor vehicle in the State" and "allow the transportation of hazardous material in the State.") [37]

As one court has found, the clear intent of Section 5125 "was to preempt only state rules in explicitly described categories, state rules with which a party cannot comply if it complies with HMTA, or state rules that otherwise pose an obstacle to fulfilling explicit provisions, not general policies, of HMTA." [38] Moreover, Section 5125's "obstacle" test likely does not "preempt with a broad brush." [39] Thus, a State, political subdivision of a State, or an Indian tribe may enact statutes or ordinances governing aspects of the transportation of hazardous materials so long as such statutes or ordinances are not "inconsistent" with federal standards and laws governing hazardous materials transportation [40]. Thus, the HMTA does not specify absolute uniformity as its goal [41].

The HMTA's flexibility, however, deals with areas in which Congress has decided not to explicitly preempt state requirements. In areas of traditional state control, therefore, the courts are reluctant to find preemption unless a Congressional intent to preempt is clearly and manifestly evidenced in the text and structure of the statute at issue [42]. The converse, of course, is that where Congress has clearly and manifestly evidenced an intent to preempt state requirements, such requirements may be legitimately preempted.

Thus, it is likely that measures such as Senator Hatch's bill to regulate the issuance of hazardous material hauling licenses would effectively preempt state requirements in this area. Currently, the Transportation Department's regulations require motor carriers to comply with the Federal Motor Carrier Safety Regulations, which generally require motor carriers to require with certain safety, identification, and record requirements. These regulations do not deal with licensing individuals per se. Senator Hatch's bill would provide the clear Congressional desire for uniformity, and thus federal preemption.

While Congressional action to create a federal license for hauling hazardous materials would not likely raise Federalism issues, bills that would direct the States to implement certain background checks or restrain their ability to issue licenses would raise serious Constitutional issues [43]. The Constitution does not permit the federal government to require States or their officers to become instruments of federal policy, nor may Congress require the States to legislate pursuant to its directions, nor order the States to implement a solution to a congressionally denoted problem [44]. Likewise, Congress cannot achieve its otherwise legitimate aims by altogether ignoring State legislatures and dragooning State officers into becoming federal program administrators [45]. Congress must take care to preserve the sovereignty of the States and not unintentionally interfere with the States' rights under the 10th Amendment in its pursuit of anti-terrorism.

E. Analysis and Conclusions

The transportation of hazardous materials has been the subject of Congressional regulation for well over a hundred years. Currently, a pervasive, but not all-encompassing, federal regulatory scheme exists that recognizes some roles for the States. The area is primarily within the purview of the Federal government, however. Congress may, with some justification, legislate within this area, even within areas, such as licensing, traditionally within the purview of the States, so long as Congress evidences a clear intent to override state regulation.

Congress may not, however, impress the States, either directly or indirectly through their officers, into the service of a federal program. Where Congress may act legitimately, it should take care not to act illegitimately. Federalism reflects the dual sovereignty embedded in our Constitution, and creates double security for individual liberty [46]. The hunt for, and eventual destruction of, the terrorists should not be the pretext for disposing of the distinction between state and federal responsibilities. Clearly, the battle against terrorism is a legitimate activity of the Federal government. Its prosecution of the war should not require the sacrifice of the sovereignty of the States.

It can be asked, of course, whether additional laws and regulations will succeed in restraining the illegal transportation of hazardous materials, in part because there are few aspects of hazardous material transportation that are not already subject to regulation. Indeed, with over 900 pages of regulations, it is difficult to understand how a hazardous waste transporter can comply with all that is demanded of him or her now. Undoubtedly, many businesses and individuals are hauling some material that in some form could be called hazardous without knowing it [47].

Finally, it must be remembered that the twenty individuals who were arrested after September 11th were arrested because they allegedly obtained their licenses fraudulently. It seems self-evident that those already breaking existing laws would be unlikely to conform their behavior to new laws. As the case is made with gun registration, new laws would most likely fall on those already inclined to obey the law in the first place.

In the end, however, one must wonder whether additional legislation will do much good against fanatics devoted to destruction; laws will do little to stop those who love death as we love life. Congress should be careful not to pass ill-conceived legislation so it can be seen as addressing a problem that may not be susceptible to a legislative solution. The direct solution is to vigorously prosecute the war against the terrorists and destroy their funding, training infrastructure and personnel. While the attacks on September 11th give Congress legitimate reasons to act, strict adherence to our Constitutional structure and the individual liberties of the American people must be the lodestar of its actions.

1. William R. Maurer is a lawyer with Perkins Coie LLP in Bellevue, Washington, and the Vice-Chairman of the Administrative Law Practice Group of the Federalist Society for Law and Public Policy Studies. His practice focuses on representing heavily regulated companies in the areas of regulatory and administrative law, commercial transactions, and appellate and administrative litigation.
2. Dan Eggen and Brooke A. Masters, FBI Alerts Hazardous Material Haulers; Authorities Charge 20 People With Fraudulently Obtaining Trucking Licenses, Wash. Post, September 26, 2001, at A1.
3. Id.
4. Jerry Seper, FBI links suspect to hazardous materials, Wash. Times, September 26, 2001, at A13.
5. Id.
6. Megan Garvey, Trucking of Hazardous Materials Scrutinized, L.A. Times, September 28, 2001, at A-1-3.
7. James W. Brosnan, Haulers Want Crime Data to Check Drivers, The Commercial Appeal, October 10, 2001, at C1 (discussing American Trucking Association's efforts to persuade Congress to grant them access to criminal databases so they could check the backgrounds of their drivers).
8. Megan Garvey, Trucking of Hazardous Materials Scrutinized, L.A. Times, September 28, 2001, at A-1-3.
9. Curtis Killman, Some radioactive waste on the move again; U.S. Department of Energy OKs trucking of low-level waste 13 days after attacks, Waste News, October 15, 2001, at 34.
10. Id.
11. Senate Commerce Subcommittee, U.S. Senator Daniel Inouye (D-HI) Holds Hearing on Bus and Truck Security and Hazardous Materials, FDCH Political Transcripts (October 10, 2001).
12. Id. (statement of Sen. Breaux).
13. Id.
14. S. 1569, 107th Cong. (2001).
15. Id. § 1.
16. Id.
17. Transportation Secretary Mineta Proposes Hazardous Materials Legislation To Improve Security and Safety, (Oct. 10, 2001), available at http://www.dot.gov/affairs/rspa2701.htm.
18. Id.
19. S. Rep. No. 93-1192, at 6 (1974).
20. Id.
21. Id. at 7.
22. Id.
23. Id.
24. Id. at 8.
25. Massachusetts v. Dep't. of Trans., 93 F.3d 890, 891 (D.C. Cir. 1996).
26. The 1990 amendments pre-empted certain non-Federal laws and standards in vital safety areas; prohibited tampering with labeling or documents associated with hazmat shipments and unlawful representation of compliance with relevant safety standards; implemented new registration requirements and an outreach and compliance program to inform shippers and carriers of such requirements; coordinated State participation in the surveillance and investigation of violators of hazardous material regulations; and adopted new minimum and higher maximum penalty provisions for violations. The 1990 amendments also authorized substantial sums for hazardous material safety programs. S. Rep. No. 103-217, at 2 (1993). The 1994 amendments reorganized the act, reauthorized funding for the HMTA and required the Department to undertake certain additional safety initiatives. Id. at 3.
27. S. Rep. No. 101-449, at 2 (1990).
28. New Hampshire Motor Transp. Ass'n v. Town of Plaistow, 67 F.3d 326, 331 (1st Cir. 1995).
29. U.S. v. V-1 Oil Co., 63 F.3d 909, 911 (9th Cir. 1995).
30. 49 U.S.C. § 5103.
31. Id.
32. 49 U.S.C. §§ 5123-24.
33. 49 U.S.C. § 5101.
34. Stuart C. Thompson, The Hazardous Materials Transportation Act: Chemicals at Uncertain Crossroads, 12 Transp. L. J. 411, 414 (1987); Senate Commerce Subcommittee, Bus and Truck Security, supra note 11 (statement of Joseph Clapp, Administrator of the Motor Carrier Safety Administration).
35. 49 U.S.C. § 5125.
36. Specifically, a person, State, political subdivision of a State, or an Indian tribe, directly affected by a requirement of a State, political subdivision, or tribe may apply to the Secretary for decision on whether the requirement is preempted by Section 5125. 49 U.S.C. § 5125(d)(1). This section does not prevent such a person, State, political subdivision of a State, or Indian tribe, from first going to court to obtain a decision on preemption. 49 U.S.C. § 5125(d)(3). The Secretary may also, upon application, waive the preemption of a requirement of the State, political subdivision, or tribe, so long as the requirement subject to waiver provides the public at least as much protection as do requirements of the HMTA and it is not an unreasonable burden on commerce. 49 U.S.C. § 5125(e). A party to a proceeding under these two subsections may bring a civil action in district court for judicial review of the Secretary's decision. 49 U.S.C. § 5125(f).
37. 49 U.S.C. § 5119. This section then orders the Secretary to "prescribe regulations to carry out the recommendations contained in the report submitted" by the working group, none of which , however, may take effect until "at least 26 States adopt all of the recommendations of the report." Once such a state-endorsed, but federally promulgated, regulations takes effect, the HMTA allows an individual state to "establish, maintain, or enforce [its own] requirement related to the same subject matter only if the requirement is the same as the [Secretary's] regulation." Id.; see also, Massachusetts v. DOT, 93 F.3d at 891 (discussing Section 5119's "working group" regulations).
38. Massachusetts v. DOT, 93 F.3d at 895.
39. Id.
40. R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 547 (11th Cir. 1998).
41. Massachusetts v. DOT, 93 F.3d at 897.
42. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).
43. See Printz v. United States, 521 U.S. 898, 926, 935 (1997).
44. Id.
45. See Printz, 521 U.S. at 928; see also MCI Communications Corp. v. Illinois Bell Teleph. Co., 222 F.3d 323, 342-43 (7th Cir. 2000) (Congress could determine that all regulation of a heavily regulated industry ought to be entrusted to the federal government, but it may not "commandeer" state regulatory agencies with legislation forcing them to regulate on behalf of Congress).
46. Federalist No. 51
47. See V-1 Oil, 63 F.3d at 913-14 (Noonan, J., dissenting) (the list of materials in the HMTA regulations is so long and so many businesses must be involved in the materials that no such business could be sure that it would not be subject to a warrantless search pursuant to the HMTA).