951 F.

2d 1571

Nuclear Reg. Rep. P 20,548

COLORADO PUBLIC UTILITIES COMMISSION and State
of Colorado,
Plaintiffs-Appellees,
v.
Lawrence HARMON and United States Department of Energy,
Defendants-Appellants,
Wisconsin Electric Power Company, Virginia Power Company,
TU
Electric Company, Rochester Gas and Electric Corporation,
Public Service Electric & Gas Company, Pennsylvania Power
&
Light Company, Northern States Power Company, Northeast
Utilities, New York Power Authority, Georgia Power Company,
Florida Power & Light Company, Duquesne Light Company,
Commonwealth Edison Company, Carolina Power & Light
Company,
Baltimore Gas & Electric Company, American Electric Power
Service Corporation, Alabama Power Company, State of
California, State of Illinois, State of Michigan, State of
Minnesota, State of Nevada, State of Texas, State of
Vermont, State of Virginia, State of Washington, State of
Wisconsin, New Mexico Health and Environment Department,
the
Environmental Defense Fund, Amici Curiae.
No. 89-1288.

United States Court of Appeals,

Tenth Circuit.
Dec. 18, 1991.

Kenneth Starr (Michael Jay Singer and Alfred Mollin, Dept. of Justice,

Washington, D.C., and Michael J. Norton, U.S. Atty., and Stuart M.

Gerson, Asst. Atty. Gen., on the briefs), Dept. of Justice, Washington,
D.C., Henry Gill and P. Benjamin Underwood, Office of Gen. Counsel,
Dept. of Energy, C. Dean McGrath, Jr., Acting Gen. Counsel, Dept. of
Transp., and Barbara Betsock and Edward H. Bonekemper, III, Office of
Chief Counsel, Research and Special Programs Admin., Dept. of Transp.,
of counsel, for defendants-appellants.
Florence J. Phillips (Gale A. Norton, Atty. Gen., Raymond T. Slaughter,
Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., and Mana
Jennings-Fader, Asst. Atty. Gen., Denver, Colo., with her on the briefs),
Sp. Asst. Atty. Gen., Cockrell, Quinn & Creighton, Denver, Colo., for
plaintiffs-appellees.
Harry H. Voigt, Leonard M. Trosten, and Margaret M. Mlynczak,
LeBoeuf, Lamb, Leiby & Macrae, Washington, D.C., on the brief for
amici curiae Wisconsin Elec. Power Co., Virginia Power Co., TU Elec.
Co., Rochester Gas and Elec. Corp., Public Service Elec. & Gas Co.,
Pennsylvania Power & Light Co., Northern States Power Co., Northeast
Utilities, New York Power Authority, Georgia Power Co., Florida Power
& Light Co., Duquesne Light Co., Commonwealth Edison Co., Carolina
Power & Light Co., Baltimore Gas & Elec. Co., American Elec. Power
Service Corp., and Alabama Power Co.
Donald J. Hanaway, Atty. Gen., and Carl A. Sinderbrand, Asst. Atty.
Gen., State of Wis., and Neil F. Hartigan, Atty. Gen., Michelle Jordan,
Chief, Environmental Control Div., and J. Jerome Sisul, Asst. Atty. Gen.,
State of Ill., on the brief, for amici curiae States of Cal., Ill., Mich., Minn.,
Nev., Tex., Vt., Va., Wash., Wis., and New Mexico Health and
Environment Dept.
Melinda Kassen, Sr. Atty., and Carolyn Doris, Legal Intern,
Environmental Defense Fund, Boulder, Colo., on the brief, for amicus
curiae The Environmental Defense Fund, State of Colo.
Before McKAY, Chief Judge, BARRETT and TACHA, Circuit Judges.
TACHA, Circuit Judge.

Appellants appeal the district court's order granting summary judgment in favor
of the Colorado Public Utilities Commission ("CPUC") and the State of
Colorado. On appeal, the Department of Energy ("DOE") argues that the

Hazardous Materials Transportation Uniform Safety Act of 1990 ("HMTUSA")

and its implementing regulations preempt the CPUC's regulations requiring
carriers of hazardous materials to carry the Colorado State Patrol telephone
number and an inspection report in the vehicle, to obtain a state permit, and to
provide the state with advance notification of shipment. DOE also asserts that
the district court failed to give sufficient deference to an inconsistency ruling by
the United States Department of Transportation ("DOT"). We exercise
jurisdiction under 28 U.S.C. 1291 and reverse.
BACKGROUND
2

In 1975, Congress enacted the Hazardous Materials Transportation Act, 49

U.S.C.App. 1801, et seq. ("HMTA"). The Act replaced a patchwork of state
and federal laws and regulations concerning the transportation of hazardous
materials with a scheme of uniform national regulations. Southern Pac. Transp.
v. Public Serv. Comm'n of Nev., 909 F.2d 352, 353 (9th Cir.1990); Jersey Cent.
Power & Light Co. v. Lacey, 772 F.2d 1103, 1112 (3d Cir.1985), cert. denied,
475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). DOT, pursuant to the
HMTA, promulgated the Hazardous Materials Regulations ("HMR"), which
categorize and classify hazardous materials and impose various requirements
on shippers and carriers for shipping papers, marking, labeling, transportvehicle placarding, and packaging of hazardous materials. 49 C.F.R. 171179.

In 1986, Colorado enacted the Colorado Nuclear Materials Transportation Act

of 1986 ("CNMTA"), codified at Colo.Rev.Stat. 40-2.2-101, et seq. In May,
1987, the CPUC adopted implementing regulations, which are codified at 4
Colo.Code Regs. 723-725 ("NT-Regulations"). Under the CNMTA and the
NT-Regulations, transporters of nuclear materials must obtain a permit from
and pay a fee to a State agency. To obtain a permit, the applicant must submit
driver training certificates (including proof of training for mountainous roads),
proof of liability insurance, a nuclear incident plan, and a vehicle equipment
failure plan. Colo.Rev.Stat. 40-2.2-201. The CNMTA also requires the
carrier to carry the permit with the shipping papers that must be carried
pursuant to federal regulation. Id. 40-2.2-203. Further, the CNMTA mandates
prenotification of all shipments, including the identity of the shipper, carrier,
and receiver, a description of the shipment, the routes to be used, and estimated
times of arrival and departure. Id. 40-2.2-209.

In 1988, pursuant to 49 C.F.R. 107.203, DOE requested an advisory opinion

from DOT as to whether the CNMTA and the NT-Regulations were preempted
by federal law.1 DOT found that a number of Colorado's regulations, including

all of the regulations at issue in this appeal, were preempted.

5

In September 1988, the CPUC and Colorado filed an action in the United States
District Court for the District of Colorado against DOE, seeking a declaratory
judgment that the CNMTA and the NT-Regulations are constitutionally valid
and are not preempted by federal law. On January 11, 1989, DOE filed a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which subsequently was
converted into a motion for summary judgment. Colorado and the CPUC filed a
cross motion for summary judgment. After oral argument, at which counsel for
both parties conceded that no factual disputes existed, the district court granted
Colorado's motion, denied DOE's motion, and ruled that the CNTMA and the
NT-Regulations were not preempted by the HMTA.2 The district court held that
there was no preemption because it was not impossible to comply with both sets
of regulations simultaneously and because Colorado's regulations promote
safety--a predominant goal of the HMTA.

DOE subsequently filed a notice of appeal in order to challenge four of the NTRegulations. However, before the appeal could be heard, Congress amended
the HMTA by enacting the HMTUSA, 49 U.S.C.App. 1801-1819. When
Congress amended the HMTA, it expressly specified the standard for
determining whether the statute or its implementing regulations preempt state
regulations that regulate in the same area. Congress also strongly reaffirmed
that uniformity was the linchpin in the design of the statute. We must now
decide whether the HMTUSA and its implementing regulations preempt four of
Colorado's NT-Regulations.

DISCUSSION
7

We review summary judgment orders de novo, using the same standards the
district court applies. Osgood v. State Farm Mut. Auto Ins. Co., 848 F.2d 141,
143 (10th Cir.1988). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505,
2509-10, 91 L.Ed.2d 202 (1986).

I. Preemption Standards Under the HMTUSA

8

The Supremacy Clause of Article VI of the Constitution provides Congress

with the power to preempt state law. Congress can preempt state law in several
ways--one of which is express preemption. Express preemption occurs when

Congress, in enacting a federal statute, announces a clear intent to preempt state

law. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604
(1977). Express preemption may result not only from action taken by Congress
itself; a federal agency acting within the scope of its congressionally delegated
authority also may preempt state law. Fidelity Federal Savings & Loan Ass'n v.
De La Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); State
Corp. Comm'n of Kan. v. FCC, 787 F.2d 1421, 1425 (10th Cir.1986).
9

The HMTUSA, like its predecessor, grants the Secretary of Transportation

broad powers to promulgate regulations governing the transportation of
hazardous materials: "The Secretary shall issue regulations for the safe
transportation of hazardous materials in intrastate, interstate, and foreign
commerce. The regulations issued under this section shall govern any aspect of
hazardous materials transportation safety which the Secretary deems necessary
or appropriate." 49 U.S.C.App. 1804(a)(1). Pursuant to this section, the
Secretary's regulations establish requirements for, among other things, highway
routing, driver training, placarding, and shipping papers.

10

When it enacted the HMTUSA, Congress specified the standards for

preemption under the Act by creating three different standards for separate
areas of regulation. Section 1819 establishes the highest preemption standard.
Pursuant to this section, after the Secretary enacts regulations with regard to
motor carrier registration and permitting forms for states that register persons
who transport hazardous material by motor vehicle, "no State [may] establish,
maintain, or enforce any requirement which relates to the subject matter of such
regulation unless such requirement is the same as such regulation." 49
U.S.C.App. 1819(e) (emphasis added).

11

The second standard applies to certain "covered subjects." Congress stated that
"unless otherwise authorized by Federal law, any law, regulation, order, ruling,
provision, or other requirement of a State or political subdivision thereof or an
Indian tribe, which concerns a subject listed in subparagraph (B) ["covered
subjects"] and which is not substantively the same as any provision of this Act
or any regulation under such provision which concerns such subject, is
preempted." Id. 1804(a)(4) (emphasis added). Any regulation issued by the
Secretary of Transportation concerning a "covered subject" has the same
preemptive effect. Id. 1804(a)(5).

12

Finally, unless the Secretary waives preemption or the regulation is otherwise

authorized by federal law, any regulation, regardless of the subject matter,

is preempted if--(1) compliance with both the State or political subdivision or Indian
13

tribe requirement and any requirement of this chapter or of a regulation issued under
this chapter 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 this chapter or the regulations issued under this chapter, or (3) it is
preempted under section 1804(a)(4) of this Appendix or section 1804(b) of this
Appendix.
14

Id. 1811(a).3 The enactment of these standards demonstrates that Congress

clearly intended to preempt state law under certain circumstances.4 We first
must examine the subject matter of the NT-Regulations at issue to determine
which of the three preemption categories applies; then we must determine
whether each regulation is preempted under that standard.

II. Application of the HMTUSA's Preemption Standards

15
16

DOE challenges four regulations: NT-3(a), NT-5(c)(5), NT-8, and NT-9. NT3(a) requires a carrier of hazardous materials to carry the Colorado State Patrol
telephone number in the vehicle. NT-5(c)(5) requires an inspection report to be
retained in the vehicle while transporting hazardous materials within Colorado.
NT-8 requires each carrier to obtain a permit, for which a fee must be paid, and
to submit the following information as part of the permit application: a copy of
the carrier's driver training program; proof of liability insurance; a nuclear
incident plan; and a vehicle equipment failure plan. NT-9 requires the carrier to
provide the state with advance notification of the shipment.

A. Preemption Under 1819

17

Because the Secretary has not yet promulgated regulations related to motor
carrier registration and permitting forms, we do not address the most restrictive
preemption standard under 1819. Therefore, we next look to the 1804
standard related to "covered subjects."

B. Preemption Under 1804--Covered Subject Preemption

18
19

Shipping documents are a "covered subject" under 1804(a)(4)(B); therefore,

any state requirements that "concern" shipping documents must be
substantively the same as the federal regulations. Accordingly, if Colorado's
regulations pertain to shipping documents, they are preempted unless they are
substantively the same as the federal regulations. DOE asserts that "shipping
documents" is a broad term and that NT-3(a), NT-5(c)(5), and NT-8 (except the
driver training program) all pertain to shipping documents. It contends that
"shipping documents" must be understood to extend to any document that a

shipper is required to generate, possess, or secure as a condition of transporting

a shipment of hazardous materials. After reviewing the statute and regulations,
we conclude that such an interpretation is without support.
20

Although the HMTUSA does not define shipping documents, the implementing
regulations contain extensive requirements that govern "shipping papers." One
such regulation defines a "shipping paper" as a "shipping order, bill of lading,
manifest or other shipping document serving a similar purpose and containing
the information required by [regulation.]" 49 C.F.R. 171.8 (emphasis added).
Further, in 49 U.S.C.App. 1805(b)(6)(I), Congress authorizes the Secretary to
require "training of its hazmat employees" in the area of "[p]reparation of
shipping documents for transportation of hazardous materials." (Emphasis
added.) This reference to "shipping documents," coupled with the previous
section's ( 1804) explanation of the contents and maintenance of "shipping
papers," suggests that Congress did not intend a different meaning for the two
terms. Thus, from the statute and regulations, we conclude that the terms
"shipping document" and "shipping paper" are used interchangeably.5
Therefore, we examine the regulations relating to "shipping papers" to
determine the scope of the term "shipping documents" and whether Colorado's
regulations seek to regulate in the "shipping documents" arena.

21

The Secretary's regulations, 49 C.F.R. 172.200-172.205, 177.800-177.826,

require that shipping papers contain a detailed description of the transported
hazardous materials, an emergency response telephone number, and other
matters not relevant here. Further, the regulations require that the shipping
papers accompany any carrier that transports hazardous materials on public
highways. Id. 177.817(a). These regulations do not govern inspection reports,
proof of liability insurance, the carrying of a nuclear incident report, or the
carrying of a vehicle equipment failure plan. Thus, NT-5(c)(5) and NT-8 do not
regulate in the same arena as DOT's shipping paper regulations.

22

However, NT-3(a) does fall within the scope of the shipping paper regulations.
NT-3(a) requires the carrier to carry the Colorado State Patrol telephone
number along with instructions to "call that number in the event of any
incident, accident, or breakdown of equipment." DOT's regulations provide
extensive requirements concerning what type of emergency numbers must be
carried on the shipping papers. First, the Secretary's regulations require the
transporter of hazardous materials to maintain an emergency response number
on a shipping paper. Id. 172.604(a)(3); see also id. 172.602(b)(3). Second,
the federal regulations specify that the number must be "[t]he number of a
person who is either knowledgeable of the hazards and characteristics of the
hazardous material being shipped and has comprehensive emergency response

and incident mitigation information for that material, or has immediate access
to a person who possesses such knowledge and information." Id. 172.604(a)
(2). NT-3(a), on the other hand, requires the motor vehicle operator to carry the
number of the Colorado State Patrol with the shipping papers.
23

Under 1804(a)(4), we must decide whether NT-3(a)'s requirement is

"substantively the same" as the federal regulations. Although "substantively the
same" has not yet been defined,6 it clearly mandates a higher preemption
standard than the dual compliance/obstacle standard defined in 1811(a).
Indeed, the term itself denotes that state regulations must contain the same
substance as the federal regulations. The Secretary's regulations, unlike
Colorado's requirements, do not require that the shipping papers contain the
telephone numbers of specific officials of any local jurisdiction through which
the material may be transported. Therefore, because Colorado's regulation
imposes different requirements than the federal regulation, NT-3(a) is not
"substantively the same" and is preempted under 1804(a)(4).7

C. Preemption Under 1811(a)--The Obstacle Test

24
25

Because the remaining regulations at issue on this appeal do not pertain to

covered subjects, we look to 1811(a) to determine whether Colorado's
regulations are preempted. Under 1811(a), a state requirement is preempted if
it is impossible to comply with both the state and federal regulation or if the
state requirement creates an obstacle to the accomplishment of the objectives
and purposes of the HMTUSA and the HMR.

26

In deciding this issue, we first address what weight to accord the Secretary of
Transportation's advisory, nonbinding opinions. The Supreme Court has held
that "[w]hen faced with a problem of statutory construction, this Court shows
great deference to the interpretation given the statute by the officers or agency
charged with its administration.... When the construction of an administrative
regulation rather than a statute is in issue, deference is even more clearly in
order." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616
(1965); see also Southern Pac. Transp. Co. v. Public Serv. Comm'n of Nev.,
909 F.2d 352 (9th Cir.1990). We defer to an administrator's construction of his
own regulations unless it is "plainly erroneous or inconsistent with the
regulation." Robertson v. Methow Valley Citizens Counsel, 490 U.S. 332, 109
S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock
& Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)).

27

In addition to deference with regard to an agency's interpretation of statutes and

regulations, we have held that "courts should defer to the judgment of an

administrative agency with reference to topics within the agency area of

expertise." Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1296 (10th
Cir.1990). DOT's expertise, in part, lies in determining the scope and coverage
of its regulations and whether Colorado's regulations cover the same subject
matter. However, a preemption determination involves matters of law--an area
more within the expertise of the courts than within the expertise of the
Secretary of Transportation. See Piper v. Chris-Craft Indus. Inc., 430 U.S. 1, 41
n. 27, 97 S.Ct. 926, 949 n. 27, 51 L.Ed.2d 124 (1977) (agency's "presumed
'expertise' in the securities-law field is of limited value when the narrow legal
issue is peculiarly reserved for judicial resolution, namely whether a cause of
action should be implied"); Jicarilla Apache Tribe v. F.E.R.C., 578 F.2d 289,
292-93 (10th Cir.1978) (great deference not required when administrative
decision is not based on expertise in a particular field, but on general common
law principles). Therefore, we defer to DOT's determinations that its
regulations overlap with Colorado's regulations, but we independently review
the legal issue of preemption.
28

In its inconsistency ruling, DOT directly addressed the regulations remaining at

issue on this appeal--NT-5(c)(5), NT-8, and NT-9.8 With regard to NT-8
(Colorado's permit regulation that requires proof of driver training), the
Secretary found that "the Department, through promulgation of 49 C.F.R.
177.825, has established a near total occupation of the field of training
requirements relating to the transportation of radioactive materials." See IR-27,
54 Fed.Reg. 16326-01 (April 21, 1989) (quoting IR-8 (appeal), 52 Fed.Reg.
13000-06 (Apr. 20, 1987)). The Secretary found that NT-9 (Colorado's
prenotification requirement) "requires greater prenotification than the NRC
regulations, which are incorporated into the HMR by 49 C.F.R. 173.22." Id.
The Secretary also found that NT-5(c)(5), which requires a carrier to carry an
inspection report, creates a requirement in excess of the HMTA's or the HMR's
requirements. Id. Implicit in all of these rulings is that the NT-Regulations and
the HMR seek to regulate in the same arena. After reviewing the NTRegulations and the HMR, we conclude that the Secretary's determinations are
reasonable, and we agree that Colorado's regulations and the Secretary's
regulations overlap.

29

We now must determine whether preemption of Colorado's regulations occurs

under 1811(a). Under 1811(a), preemption is only appropriate if
compliance with federal regulations and Colorado's regulations is impossible or
if compliance with Colorado's regulations would create an obstacle to the
accomplishment and execution of the HMTUSA or its implementing
regulations. DOE concedes that compliance with both sets of regulations is not
impossible. Therefore, we only analyze preemption under the obstacle test. 9

30

In determining preemption under the obstacle test, the Supreme Court has
examined whether the state law " 'stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.' " Hillsborough
County v. Automated Medic. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375,
85 L.Ed.2d 714 (1985) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct.
399, 404, 85 L.Ed. 581 (1941)) (emphasis added); see also National Tank
Truck Carriers, Inc. v. City of New York, 677 F.2d 270, 275 (2d Cir.1982).
Further, "[a] state law also is preempted if it interferes with the methods by
which the federal statute was designed to reach this goal." International Paper
Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 813, 93 L.Ed.2d 883
(1987); Michigan Canners & Freezers Ass'n v. Agricultural Marketing &
Bargaining Bd., 467 U.S. 461, 477, 104 S.Ct. 2518, 2527, 81 L.Ed.2d 399
(1984). Therefore, we must identify and understand the goals and purposes of
the HMTUSA.

31

When it enacted the HMTUSA, Congress made a number of findings that relate
to the transportation of hazardous materials and the importance of uniform
regulations governing the transportation of hazardous materials. Congress
stated:

32 many States and localities have enacted laws and regulations which vary from
(3)
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,
33 because of the potential risks to life, property, and the environment posed by
(4)
unintentional releases of hazardous materials, consistency in laws and regulations
governing the transportation of hazardous materials is necessary and desirable,
34 in order to achieve greater uniformity and to promote the public health, welfare,
(5)
and safety at all levels, Federal standards for regulating the transportation of
hazardous materials in intrastate, interstate, and foreign commerce are necessary and
desirable.
35

49 U.S.C.App. 1801 (congressional declaration of policy); cf. National Tank

Truck Carriers, Inc. v. Burke, 608 F.2d 819, 824 (1st Cir.1979) (analyzing the
HMTA and stating that "there is strong support for the notion that a primary
Congressional purpose intended to be achieved through the legislation was to
secure a general pattern of uniform national regulations").

36

Congressional committees echoed the importance of uniform safety

36

Congressional committees echoed the importance of uniform safety

regulations. The report of the House Committee on Energy and Commerce
noted that the House Bill "reflects the view that a high degree of uniformity of
Federal, State, and local laws is required in order to promote safety and to
encourage the free flow of commerce." H.R.Rep. No. 444 (Part 1), 101st Cong.,
2d Sess., at 22 (1990). The Senate Committee on Commerce, Science and
Transportation, which reported the bill that amended HMTA, stated that the
"original intent of the HMTA was to authorize the Department of
Transportation with the regulatory and enforcement authority ... to preclude a
multiplicity of State and local regulations and the potential for varying as well
as conflicting regulations." S.Rep. No. 449, 101st Cong. 2d Sess., at 2 (1990),
reprinted in 1990 U.S.Code Cong. & Admin.News 4595, 4596. Further, the
debate on the floor of Congress reveals that Congress determined that
uniformity would ensure safety. See 136 Cong.Rec. H13645-03 (remarks of
Rep. Luken) ("This bill provides for uniform Federal, State, and local laws in
certain technical areas, thus ensuring the safe and efficient transportation of
hazardous materials throughout the country."); 136 Cong.Rec. H13645-03
(remarks of Rep. Hammerschmidt) ("this bill will provide a strong framework
for uniform regulation in critical areas such as classification, marking, and
handling of hazardous materials"). Thus, in enacting new preemption standards,
Congress expressly contemplated that the Secretary would employ his powers
to achieve safety by enhancing uniformity in the regulation of hazardous
materials transportation. Given this congressional purpose, we must determine
whether Colorado's regulations create an obstacle "to the accomplishment and
execution" of the HMTUSA or the HMR. 49 U.S.C.App. 1811(a).
1. NT-8--Permit Requirements

37

We begin by analyzing NT-8, which requires a carrier to obtain a permit before

it may transport hazardous materials. In order to obtain a permit, the carrier
must submit a copy of the carrier's driver training program (including training
for mountainous driving), proof of liability insurance, a nuclear incident plan,
and a vehicle equipment failure plan.

a. Driver training requirements

38
39

In order to receive a State permit, a carrier must submit "a copy of the
company's driver training program," and "[i]f the route to be traveled includes
mountain driving (i.e., travel west of I-25 into or through the mountains),
describe the training program which specifically involves the preparation for
driving on mountainous roads under all types of weather conditions." 40
Colo.Regs. 2.2-201, NT Appendix 8-A. Colorado contends that NT-8(a)
furthers the HMTUSA's goals by ensuring safety and enforcement of the driver

training requirement.
40

The Secretary's regulations concerning training for drivers transporting

radioactive materials are extensive; coverage includes training in the
requirements of the federal rules, "the properties and hazards of the radioactive
materials being transported," and emergency procedures. 49 C.F.R.
177.825(d). The Secretary's regulations do not require a carrier to undergo
mountain training or to submit proof of the completion of a driver training
program to local authorities. Thus, Colorado's regulations go far beyond the
HMR.

b. Insurance requirements
41
42

Colorado requires carriers to submit proof of insurance to the CPUC as part of

the permit application. The Secretary's regulations do not, unlike Colorado's
requirements, require the carrier to provide proof of insurance to officials of any
of the various local jurisdictions through which hazardous materials are
transported. We also note that the Secretary, in regulations promulgated under
the Motor Carrier Safety Act, requires a motor carrier to retain proof of
required insurance at his principal place of business and allow any member of
the public to review this information. 49 C.F.R. 387.7(d) & (e).10 Therefore,
Colorado's proof-of-insurance requirement causes a carrier of hazardous
materials to submit more documentation than contemplated in the HMTUSA or
other federal acts related to transportation.

c. Nuclear incident clean-up plan

43
44

Colorado requires the carrier to submit a plan to local officials that includes
provisions for removing a truck and its cargo from an accident scene,
preventing or minimizing radioactivity releases, and decontaminating the
environment. This requirement specifically overlaps the provisions of 49 C.F.R.
177.825(d), which provides that a driver must be trained in the procedures to
follow in case of an accident or emergency. Colorado's regulations expand on
federal regulations, requiring a carrier to generate more documentation and then
supply that same documentation to a local authority.d. Vehicle equipment
failure plan

45

Colorado requires the carrier to submit to the CPUC a plan for replacing or
repairing equipment that has been placed out of service or that has become
inoperative for other reasons. Vehicle equipment is regulated by the HMR only
to the extent the HMR incorporates the Federal Motor Carrier Safety
Regulations by reference. 49 C.F.R. 177.804. Although the Secretary's

regulations establish requirements for driver training and require drivers to

carry certificates of completion of the required training, 49 C.F.R.
177.825(d), the regulations do not, unlike Colorado's requirements, require
drivers to submit these documents, in advance, to officials in the various
jurisdictions through which they transport hazardous materials.
46

All four of these provisions require carriers to generate and to submit

documentation to local authorities that is in excess of the HMR's documentation
requirements. The Secretary's regulations contain hundreds of information and
documentation requirements, all of which have been established by the
Secretary to ensure the health and safety of citizens in every jurisdiction.
Congress specifically found that additional documentation and information
requirements in one jurisdiction create "unreasonable hazards in other
jurisdictions" and could confound "shippers and carriers which attempt to
comply with multiple and conflicting regulations." 49 U.S.C.App. 1801.

47

Colorado's regulations clearly exceed the information and documentation

requirements set forth in the Secretary of Transportation's regulations governing
the transportation of radioactive materials. The enactment of separate
information and documentation requirements in even a few of the thousands of
local jurisdictions across the country would lead to the multiplicitous
regulations Congress sought to avoid by enacting the HMTUSA.11 Because
Colorado's regulation forces transporters of hazardous materials to generate and
maintain additional documentation and information, we conclude that it is
likely to confound shippers and carriers and to increase the potential for hazards
in other jurisdictions. Colorado's regulations simply do not further the federal
purpose of promoting safety through uniformity. Therefore, we hold that NT-8
is preempted.12
2. NT-9--Prenotification Requirements

48

The Secretary requires advance notification to the Governor of a state or his

designee by shippers of "irradiated reactor fuel" or in circumstances where such
notification is required by the Nuclear Regulatory Commission. 49 C.F.R.
173.22(c); 10 C.F.R. 73.37. NT-9, however, requires prenotification by those
who transport other categories of nuclear materials as well. Further, Colorado's
prenotification requirements are extensive, requiring "[t]he name, address, and
telephone number of the shipper, carrier, and receiver," a description of the
materials to be transported, a listing of routes, the transport index, and the
estimated dates and times of arrival and departure.

49

Congress expressly found that state "notification" requirements that "vary from

49

Congress expressly found that state "notification" requirements that "vary from
Federal laws and regulations" create "unreasonable hazards" and pose "a
serious threat to public health and safety." 49 U.S.C.App. 1801. Colorado's
prenotification requirement varies from federal law, poses a threat to
uniformity, and thereby threatens public safety and obstructs the purpose and
objective of Congress and the Secretary. Therefore, we conclude that NT-9 is
preempted.

50

3. NT-5(c)(5)--Inspection Reports Requirements

51

NT-5(c)(5) requires the carrier to retain an inspection report in the vehicle

while transporting hazardous materials. The Secretary's regulations require the
owner and the motor carrier to retain a copy of the inspection report, 49 C.F.R.
396.3(b),13 but do not require the report to be carried in the vehicle. The
Secretary's regulations require only that a limited amount of documentation be
carried in the vehicle, which avoids carrier confusion and promotes quick
access to critical documentation. Colorado's requirement of additional
information could create confusion in an emergency situation and could thereby
increase the potential hazard of transporting nuclear waste. Therefore, we also
conclude that NT-5(c)(5) obstructs the congressional purpose and is preempted.

III. Conclusion
52

We do not doubt that Colorado's regulations were implemented to enhance

safety in the State of Colorado. However, "[t]he 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."
Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct.
3014, 3022, 73 L.Ed.2d 664 (1982) (quoting Free v. Bland, 369 U.S. 663, 666,
82 S.Ct. 1089, 1092, 8 L.Ed.2d 180 (1962)). Congress enacted the HMTUSA
to enhance safety throughout the country. To accomplish this purpose,
Congress concluded that uniform standards are necessary and desirable.
Uniformity and safety are not at odds. We must not balance one against the
other. Rather, Congress stated unequivocally that the "Federal standards for
regulating the transportation of hazardous materials" were necessary "to
achieve greater uniformity and to promote the public health, welfare, and safety
at all levels." 49 U.S.C.App. 1801.14

53

With this statement, Congress directed that safety be achieved through

uniformity. Colorado's regulations inhibit and obstruct uniformity by
mandating extensive information and documentation requirements that are
likely to confound the transporters of hazardous materials, thereby increasing

the potential for unreasonable hazards throughout the country. Because

Colorado's regulations obstruct the purposes and objectives of Congress, we
conclude that they are preempted by the HMTUSA and the HMR.
54

To the extent that the district court held that NT-3(a), NT-5(c)(5), NT-8, and
NT-9 are not preempted, we REVERSE.

Pursuant to 49 C.F.R. 107.205, a concerned state may submit comments

regarding the application for an inconsistency ruling. Colorado declined to
submit comments in this case

The district court also ordered that the words "within Colorado" be stricken
from 4 Colo.Code Regs. 723-725 NT-1(d)(4). The district court stated that
"nuclear materials used for medical or research purposes shall be excluded
regardless of whether or not they are used in Colorado." Because neither party
raises this issue on appeal, we do not address it here and allow this part of the
district court order to stand

This standard replaces the "inconsistency" determination under the HMTA. It

codifies the Secretary's regulation relating to preemption that was promulgated
to assist in determinations of inconsistency. In turn, this standard derives from
Supreme Court precedent that established a way to resolve preemption
questions when a conflict arises between federal and state law. See Hines v.
Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941)

The HMTUSA does not leave state or local governments without recourse
when its requirements are preempted. The HMTUSA also provides that the
Secretary, upon application of "[a]ny State or political subdivision or Indian
tribe," may waive preemption of a requirement "upon a determination that such
requirement--(1) affords an equal or greater level of protection to the public
than is afforded by the requirements of this chapter or regulations issued under
this chapter, and (2) does not unreasonably burden commerce." 49 U.S.C.App.
1811(d). Colorado has not made such an application with respect to the NTRegulations at issue here

Although the meaning of "shipping documents" is not completely clear in the

legislative history of the HMTUSA, it appears that Congress used the terms
"shipping papers" and "shipping documents" interchangeably. The "Section-bySection Analysis" of House Report No. 101-444(I) uses the term "shipping
documents" and states that "consistency in all aspects of such documents will
promote more precise and easier identification of any hazardous material,

improve systems for handling hazardous materials, and enhance capabilities for
dealing with emergencies associated with the transportation of hazardous
materials." H.R.Rep. No. 444 (part I), at 34. These concerns are the same as
those that Congress mandated that the Secretary consider when determining the
contents of "shipping papers." See 49 U.S.C.App. 1804(g)
6

DOT has proposed that "substantively the same" be defined as "conforming in

every respect." A number of illustrations are provided with the notice of
proposed rulemaking, all of which indicate that only minor editorial changes
would not be preempted. See 56 Fed.Reg. 36992-01

We note that a state may require the transporter of hazardous materials to

maintain emergency telephone numbers on or with the transporter's route plan.
49 C.F.R. 177.825(c). Colorado's regulation is preempted because it requires
the carrier to carry the Colorado State Patrol number with the shipping papers,
not the route plan

The Secretary has delegated his authority to make initial administrative

decisions about applications for Inconsistency Rulings and about applications
for exemptions from preemption to the Director of the Office of Hazardous
Materials Transportation, Research and Special Programs Administration,
Department of Transportation. 49 C.F.R. 107.209. The Director made these
particular inconsistency determinations. Administrative appeals are available
before the Administrator of the Research and Special Programs Administration.
49 C.F.R. 107.211

Because 1811(a)'s obstacle test codifies a judicially created test for

determining when a federal statute impliedly preempts state law, see Hines v.
Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941), the line of cases
developing the obstacle test is instructive to our application of 1811(a)

10

Colorado asserts that the Motor Carrier Safety Act ("MCSA") authorizes
Colorado's insurance requirement because the Act does not preempt such a
requirement. Colorado then concludes that this court must apply the
preemption standards utilized under the MCSA to this regulation. We disagree.
Section 1811(a) exempts a state regulation from preemption if it is "otherwise
authorized by Federal law." The fact that the MCSA does not preempt
Colorado's requirement cannot be construed as an authorization of the
regulation

11

In addition to obstructing Congress' objective that safety be achieved through

uniformity, the expense of overburdensome documentation and information
requirements also is contrary to Congress' intent that regulation of hazardous
materials transportation be as cost-effective as possible. In its findings

accompanying the enactment of the HMTUSA, Congress mentioned the need

for "reasonable, adequate and cost-effective protection from the risk posed by
the transportation of hazardous materials." 49 U.S.C.App. 1801
(Congressional Findings) (emphasis added). Congress also stated that "the
movement of hazardous materials in commerce is necessary and desirable to
maintain economic vitality and meet consumer demands, and shall be
conducted in a safe and efficient manner." Id
12

DOE does not contend that Colorado's permit fees are unreasonable. Therefore,
we do not reach this issue. Instead, we hold that because the underlying
requirements of NT-8 constitute obstacles to the HMTUSA, the regulation is
preempted

13

49 C.F.R. 396.3(b) is incorporated by reference to the HMR. 49 C.F.R.

177.804

14

In the context of other federal statutes, courts have recognized that when
Congress adopts uniformity as a method for achieving the goal of safety, state
remedies or regulations that interfere with Congress' uniform scheme are
preempted. See Wood v. General Motors Corp., 865 F.2d 395, 408 (1st
Cir.1988); Kelly v. Carr, 691 F.2d 800, 804 (6th Cir.1980)