TSA, USDOT Issue Rules Requiring Background Checks on Drivers with Hazmat Endorsement

May 02, 2003
The Transportation Security Administration (TSA) and the U.S. Department of Transportation moved to secure the transport of dangerous goods, including explosives, by issuing an interim final rule requiring background checks on commercial drivers certified to transport hazardous items.

“This is a landmark rule in that it establishes vital safeguards to protect our national transportation network from possible acts of terrorism,” said TSA Administrator Adm. James M. Loy. “The rules will further ensure the continued safe transport of a range of products – from chlorine to gasoline – crucial to the economic viability of the United States.”

This rule was required under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), which was enacted by Congress on October 25, 2001.

Under TSA’s rule, the roughly 3.5 million commercial drivers with hazardous material (Hazmat) endorsements now will be required to undergo a routine background records check that includes a review of criminal, immigration, and FBI records. Any applicant with a conviction (military or civilian) for certain violent felonies over the past seven years, or who has been found mentally incompetent, will not be permitted to obtain or renew the Hazmat endorsement. The checks also will verify that the driver is a U.S. citizen or a lawful permanent resident as required by the USA PATRIOT Act.

The Federal Motor Carrier Safety Administration’s (FMCSA) companion rule amends the Federal Motor Carrier Safety Regulations to prohibit States from issuing, renewing, transferring or upgrading a commercial driver’s license (CDL) with a Hazmat endorsement, unless the TSA has first conducted a background records check of the applicant and determined that the applicant does not pose a security risk warranting denial of the Hazmat endorsement. The FMCSA is also requiring states to establish a Hazmat endorsement renewal period of at least five years to insure that each holder of a Hazmat endorsement routinely and uniformly receives a security screening. The five-year renewal cycle was established in close coordination with TSA, based on its security risk determination requirements. The rule does not apply to applicants for CDLs without a Hazmat endorsement.

The Research and Special Programs Administration (RSPA) companion rule clarifies the regulatory authority for Hazmat, including explosives in transportation, to make clear that DOT regulations address security risks associated with such transportation. Shippers and transporters of Hazmat must comply with the security regulations of TSA, FMCSA and the U.S. Coast Guard, which are being incorporated into DOT’s Hazardous Materials Regulations. RSPA recently issued a final rule that requires shippers and transporters of Hazmat to implement plans and training to enhance security.

The list of disqualifying crimes was specifically designed to identify those most likely to endanger the nation’s transportation network and is comparable to background reviews applied to millions of airport and airline employees. Disqualifying crimes include acts of:

  • Terrorism
  • Murder
  • Assault with intent to murder
  • Espionage
  • Sedition
  • Kidnapping or hostage taking
  • Treason
  • Rape or aggravated sexual abuse
  • Extortion
  • Robbery
  • Arson
  • Bribery
  • Smuggling
  • Immigration violations
  • RICO violations
  • Unlawful possession, use, sale, distribution, or manufacture of an explosive, explosive device, firearm or other weapon;
  • Distribution of, intent to distribute, possession, or importation of a controlled substance; Dishonesty, fraud, or misrepresentation, including identity fraud; Crimes involving a severe transportation security incident; Improper transportation of a hazardous material; or Conspiracy or attempt to commit any of these crimes.

Only drivers applying for Hazmat endorsements will be affected by this rule. If disqualified to hold Hazmat endorsements, drivers may continue to transport all non-hazardous cargo. The rule provides an appeal process for cases in which the database information is incorrect, to ensure that no driver loses the Hazmat endorsement due to inaccurate records. Also, drivers who committed a disqualifying offense, were found to be mentally incompetent or were committed to a mental institution may apply for a waiver if they prove that they are rehabilitated and capable of transporting Hazmat safely.

TSA’s interim final rule is effective Monday, May 5, upon publication in the Federal Register. Applicants will be subject to a name-based FBI criminal history records check and a check of Federal databases. Beginning in 180 days or less, current drivers applying to renew or transfer their Hazmat endorsement and all new applicants must provide fingerprints. Under both the FMCSA and TSA rules, after 180 days, no state may issue, renew, or transfer a Hazmat license unless TSA has notified the State that the individual holding the endorsement does not pose a security threat.

The USA PATRIOT Act authorized the Secretary of Transportation to develop standards to require commercial drivers with Hazmat endorsements to undergo a criminal history background check. The Secretary delegated this authority to TSA, FMCSA and RSPA, which have worked closely with other federal agencies and industry associations to develop complementary rules to address the transportation of Hazmat via truck.

The interim final rules are available at http://dms.dot.gov/ by searching for docket numbers 11117 (FMCSA), 14982 (RSPA), and 14610 (TSA). Individuals and operators with questions about the new rule should contact TSA patriotact@dhs.gov.

U.S. Announces Major Clean Air Act Settlement with Wisconsin Electric Power Co.

The Department of Justice and the Environmental Protection Agency announced a $600 million Clean Air Act settlement with Wisconsin Electric Power Company (WEPCO), also known as We Energies. The settlement resolves the federal government's claims that Wisconsin Electric violated the New Source Review (NSR) provisions of the Clean Air Act at several of its plants by undertaking major modifications and increasing emissions of air pollution without also installing required air pollution controls. The settlement is expected to eliminate more than105,000 tons of harmful air pollutants annually from five coal-fired electricity generating plants in Wisconsin and Michigan.

This settlement is consistent with a series of cases pursued by the federal government to bring the coal-fired power plant industry into full compliance with the New Source Review requirements of the Clean Air Act. The agreement requires Wisconsin Electric to install state-of-the-art controls or elect to shut down units, representing 80 percent of its total coal-fired megawatt generating capacity. One-hundred percent of the units covered under the agreement must also comply with a declining system-wide rate and cap for sulfur dioxide (SO2) and nitrogen oxide (NOx).

It is estimated that the company will spend up to $600 million to reduce 72,300 tons per year of SO2 and 32,600 tons per year of NOx and improve its control of particulate matter (PM) from each of the plants included in the settlement. The company also will pay a $3.2 million civil penalty and spend at least $20 million to finance an environmental mitigation project demonstrating a new technology to significantly reduce mercury emissions from coal-fired power plants.

Wisconsin Electric is a large Midwestern coal-fired electric utility. The settlement covers five Wisconsin Electric plants, four in Wisconsin and one in Michigan, consisting of 23 electricity generating units. These five plants emitted over 147,000 tons of SO2 and NOx in 2001. Sulfur dioxide and NOx are significant contributors to acid rain; NOx also increases low-level ozone, which causes smog; fine particulate matter causes haze. All these pollutants cause severe respiratory problems and exacerbate cases of childhood asthma.

The settlement will achieve reductions through the installation of new pollution control equipment, the upgrading of existing pollution controls on several of the units in the Wisconsin Electric system, and through the retirement of some older units. This technology is required to be installed or upgraded on specified units in the Wisconsin Electric system.

Wisconsin Electric Power Company was a party in the litigation and landmark 1990 7th Circuit Court decision regarding the application of the Clean Air Act's NSR standards to coal-fired utilities. The WEPCO coal-fired units that were at issue in the 1990 WEPCO decision will be shut down or controlled in 2004 under the settlement.

The WEPCO settlement was lodged on April 29, 2003 for a 30-day public comment period in the United States District Court in Milwaukee, Wis.

EPA Announces Environmental Justice Revitalization Projects

To promote environmental justice and community revitalization, EPA's Office of Environmental Justice, in collaboration with the Federal Interagency Working Group on Environmental Justice (IWG), announced the selection of 15 Environmental Justice Revitalization Projects for 2003. The projects emphasize collaboration among two or more federal agencies, state and local governments, tribal governments, community-based organizations, academia, non-governmental organizations, and industry.

The IWG has selected the following 15 demonstration projects:

  • Chelsea Creek Restoration Project, Chelsea and East Boston, Mass.
  • Revitalization of the Magic Marker Brownfields Site, Trenton, N.J.
  • Empowering Communities to Secure Drinking Water in Rural Puerto Rico
  • Utilizing Compliance Assistance to Achieve Community Revitalization in Park Heights, Baltimore, Md.
  • Vision 2020: For the Children of Anniston-Children's Health Environmental Justice Project, Anniston, Ala.
  • Glades Area Environmental Justice Training Collaborative, Belle Glade, Fla.
  • The Sustainable Redevelopment and Revitalization of Princeville, N.C.
  • The Arcade-Westside Area Revitalization Project: A Community-Based Collaboration, Rock Hill, S.C.
  • Waukegan Cleanup and Revitalization Plan, Waukegan, Ill.
  • Project ReGeneration: Building Partnerships for Livability and Sustainability in the Greater Kelly Area, San Antonio, Texas
  • Development of a Cheyenne River Sioux Tribal Park: A Tribal Lands Conservation Partnership, Eagle Butte, S.D.
  • Northeast Denver Environmental Initiative, Denver, Colo.
  • Tribal Wind Power – A Viable Strategy for Community Revitalization and Capacity, Rosebud Indian Reservation, S.D.
  • Effective Solid Waste Management for the Native Village of Selawik, Alaska
  • Enhancing Tribal Consultation to Protect Cultural and Historic Resources, Colo., La., and N.M.

Under Executive Order 12898, EPA convened the IWG, which is comprised of representatives from 11 federal agencies and several White House offices. For more information visit http://www.epa.gov/compliance/environmentaljustice/interagency/index.html.

EPA Announces Environmental Compliance Tool for Builders

EPA Administrator Christie Whitman unveiled a new EPA-funded Construction Industry Compliance Assistance Center (CICAcenter), the first of two such centers to be announced this month that will provide Web-based information and resources to further assist compliance with federal and state environmental regulations.

"By getting clear guidance to the people in the field, those who can make a positive impact on the environment, we believe the use of this Construction Industry Compliance Assistance Center will substantially increase their compliance with the new stormwater regulations and other important regulations such as those involving wetlands, asbestos, and lead paint," Whitman said.

A 1999 EPA study found that out of approximately 60,000 construction starts that were subject to the stormwater control regulations, roughly two thirds lacked the necessary permits. Stormwater runoff from construction sites is a primary cause of water body impairment. The Agency's new stormwater regulations, which now apply to all sites over one acre, impact even more companies, most of which are small- or medium-sized businesses. Other environmental concerns involving the construction industry include improper handling of waste oil, toxics (asbestos, lead), hazardous components in construction and demolition wastes, and airborne particulate matter.

The new web-based CICAcenter, found at at http://www.cicacenter.org, was developed by the National Center for Manufacturing Sciences, in partnership with the Associated General Contractors of America, the National Association of Home Builders, the American Road and Transportation Builders Association, and the Golf Course Builders Association of America. With this new compliance tool, users will find plain-language explanations of applicable regulations, as well as links to state and local regulatory agencies.

Next week, EPA plans to launch another compliance assistance center, for the nation's automotive recyclers. On May 9, J.P. Suarez, EPA's Assistant Administrator for Enforcement and Compliance Assurance will announce the new Environmental Compliance Automotive Recyclers Center (ECARcenter) at the Automotive Recyclers Association's (ARA) leadership conference in Washington, D.C. ECARcenter, a cooperative effort between the ARA and the National Center for Manufacturing Science, will help automotive recyclers comply with environmental regulations. The ECARcenter, also under development, can be found at http://www.ECARcenter.org.

With the addition of these new Centers, EPA has partnered with industry, academic institutions, environmental groups, and other agencies to develop a total of 13 sector-specific Compliance Assistance Centers. In addition to the Construction Industry and Auto Recyclers Centers, other Centers include agriculture, auto repair, chemical, federal facilities, local government, metal finishing, painting and coatings, printed wiring board, printing, transportation, and US / Mexican border environmental issues. Through Web sites, telephone assistance lines, fax-back systems, and e-mail discussion groups, the Centers are helping businesses, local governments, and federal facilities understand federal environmental requirements and save money through pollution prevention techniques.

To visit all Compliance Assistance Centers, see http://www.assistancecenters.net/.

EPA Adds Seven Final, 14 Proposed Hazardous Waste Sites to the Superfund NPL

EPA is proposing 14 sites to the Superfund National Priorities List (NPL) and finalizing seven more. EPA's selection of the 14 proposed new sites was based on various factors including: risk to human health and the environment, the need for urgent response, maintenance of a strong enforcement program, leverage of other cleanups, the level of support for listing from state, tribes, and communities, and program management and resource considerations. At all of these sites, EPA will work with states, tribes, local communities and other partners in identifying land reuse options and opportunities where they can work together to spur economic revitalization.

In its recently announced Land Revitalization Agenda, EPA made a commitment that cleanup of contaminated land is not enough ---- these sites must be available to the community to provide jobs, tax revenues and recreational benefits that did not previously exist. Revitalization and reuse will now be a formal part of planning at every site.

The 14 proposed sites are: AMCO Chemical, Oakland, Calif.; Captain Jack Mill, Ward, Colo.; 68th Street Dump, Baltimore, Md.; Madison County Mines, Fredericktown, Mo.; Newton County Mine Tailings, Newton County, Mo.; Ram Leather Care, Charlotte, N.C.; Troy Mills Landfill, Troy, N.H.; Rolling Knolls Landfill, Chatham Township, N.J.; Standard Chlorine Chemical Company Inc., Kearny, N.J.; White Swan/Sun Cleaners GW Contamination, Wall Township, N.J.; Armco Inc., Hamilton Plant, Hamilton, Ohio; Peters Cartridge Factory, Kings Mills, Ohio; Conroe Creosoting \fs24softlineCompany, Conroe, Texas; and Jones Road Ground Water Plume, Harris County, Texas.

Proposed sites must go through a public comment period before they can be finalized on the NPL.

The seven final sites are: United Metals Inc., Marianna, Fla.; Ward Transformer, Raleigh, N.C.; Omaha Lead, Omaha, Neb.; Woodbrook Road Dump, South Plainfield, N.J.; Pesticide Warehouse III, Manati, Puerto Rico; Gulfco Marine Maintenance, Freeport, Texas; Davenport and Flagstaff Smelters, Sandy City, Utah.

These final seven sites are now eligible for Superfund remedial action funds.

The NPL now contains 1,236 final sites. Cleanup construction has been completed at 850 sites and is underway at 384 additional sites.

For Federal Register notices and support documents for the new proposed and final sites, see: http://www.epa.gov/superfund/sites/npl/newnpl.htm