
[Federal Register: May 6, 2008 (Volume 73, Number 88)]
[Notices]               
[Page 25079-25094]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my08-135]                         

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2007-28444 (PDA-32(R)]

 
Maine Department of Environmental Protection Requirements on 
Transportation of Cathode Ray Tubes

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to comment on an application by 
the Electronic Industries Alliance for an administrative determination 
as to whether Federal hazardous material transportation law preempts 
requirements of the Maine Department of Environmental Protection on the 
transportation of cathode ray tubes and glass removed from cathode ray 
tubes.

DATES: Comments received on or before June 20, 2008, and rebuttal 
comments received on or before August 4, 2008, will be considered 
before an administrative determination is issued by PHMSA's Chief 
Counsel. Rebuttal comments may discuss only those issues raised by 
comments received during the initial comment period and may not discuss 
new issues.

ADDRESSES: The application and all comments received may be reviewed in 
the Docket Operations Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590. The application and all 
comments are available on the U.S. Government Regulations.gov Web site: 
http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-2007-28444 and may be 
submitted to the docket in writing or electronically. Mail or hand 
deliver three copies of each written comment to the above address. If 
you wish to receive confirmation of receipt of your comments, include a 
self-addressed, stamped postcard. To submit comments electronically, 
log onto the U.S. Government Regulations.gov Web site: http://
www.regulations.gov. Use the Documents section of the home page and 
follow the instructions for submitting comments.
    A copy of each comment must also be sent to (1) Aaron H. Goldberg, 
Esq., Beveridge & Diamond, 1350 I Street, NW., Suite 700, Washington, 
DC 20005-3311, counsel for the Electronic Industries Alliance, and (2) 
Ms. Stacy Ladner, Maine Department of

[[Page 25080]]

Environmental Protection, 17 State House Station, Augusta, ME 04333-
0017. A certification that a copy has been sent to these persons must 
also be included with the comment. (The following format is suggested: 
``I certify that copies of this comment have been sent to Mr. Goldberg 
and Ms. Ladner at the addresses specified in the Federal Register.'')
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (70 FR 19477-78), or you may visit http://www.dot.gov.
    A list and subject matter index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption 
determinations, are available through the home page of PHMSA's Office 
of Chief Counsel, at http://phmsa-atty.dot.gov. A paper copy of this 
list and index will be provided at no cost upon request to Mr. Hilder, 
at the address and telephone number set forth in FOR FURTHER 
INFORMATION CONTACT below.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief 
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, Zone E26 (PHC-10), 1200 New Jersey 
Avenue, SE., Washington, DC 20590; telephone No. 202-366-4400; 
facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION: 

I. Application for a Preemption Determination

    The Electronic Industries Alliance (``Alliance'') has applied for a 
determination that Federal hazardous material transportation law, 49 
U.S.C. 5101 et seq., preempts certain requirements of the Maine 
Department of Environmental Protection (``MDEP'') on the transportation 
of cathode ray tubes (``CRTs'') and glass removed from CRTs (``CRT 
glass'') destined for reuse, repair, or recycling. The Alliance states 
that, under regulations of the Environmental Protection Agency (EPA), 
these CRTs and CRT glass are not considered ``solid wastes'' and, 
because a Uniform Hazardous Waste Manifest is not required, are not 
classified as ``hazardous wastes'' under the HMR. See 49 CFR 171.8 
(definition of ``hazardous waste'' for purposes of the HMR).
    In its application, the Alliance refers to EPA's recent rulemaking 
on ``Modification of the Hazardous Waste Program; Cathode Ray Tubes,'' 
in which EPA explained that CRTs are ``vacuum tubes, made primarily of 
glass, which constitute the video display components of televisions and 
computer monitors'' as well as other ``medical, automotive [and] 
oscilloscope'' appliances. Notice of Proposed Rulemaking, 67 FR 40508, 
40509 (June 12, 2002). ``CRTs are built of a specialized glass that 
often contains lead.'' Id. EPA explained that, in general, black and 
white monitors (or ``monochrome CRTs'') do not have sufficient lead to 
meet the toxicity characteristic for a hazardous waste under EPA's 
regulations, but the more ``significant quantities of lead [used] to 
make color cathode ray tubes'' exceed the ``toxicity characteristic 
regulatory level of 5 milligrams per liter that is used to classify 
lead-containing wastes as hazardous (40 CFR 261.24(b)).'' 67 FR at 
40510.
    EPA's July 28, 2006 final rule, which became effective on January 
29, 2007, did not affect the existing exemptions from Federal hazardous 
waste management requirements for ``CRTs from households'' (see 40 CFR 
261.4(b)(1)) and ``[n]on-residential generators of less than 100 
kilograms (about 220 pounds) of hazardous waste in a calendar month'' 
who meet the conditions in 40 CFR 261.5. 71 FR 42928, 42929. EPA also 
stated that the rule did not affect ``persons who send unused CRTs for 
recycling [who] are not subject to RCRA regulations'' because ``EPA 
does not regulate unused commercial chemical products that are 
reclaimed.'' Id. See also the discussion at 67 FR at 40511. EPA has 
provided that, unless used CRTs or CRT glass are being disposed or 
speculatively accumulated (as defined in 40 CFR 261.1(c)(8)), none of 
the following are solid or hazardous wastes:

--Used, intact CRTs sent for recycling within the United States. 40 
CFR 261.4(a)(22)(i). If exported for recycling, the exporter must 
notify the receiving country through EPA; the receiving country must 
consent to the intended export; and an Acknowledgement of Consent to 
Export CRTs must accompany the shipment. 40 CFR 261.4(a)(22)(ii), 
261.40.
--Used, broken CRTs sent for recycling within the United States 
which are transported in a container (including a vehicle) 
constructed, filled, and closed to minimize releases of CRT glass to 
the environment. The container must be labeled ``Do not mix with 
other glass materials'' and one of the following: ``Used cathode ray 
tube(s)-contains leaded glass'' or ``Leaded glass from televisions 
or computers.'' 40 CFR 261.4(a)(22)(iii), 261.39(a)(1)-(4). If these 
materials are exported for recycling, the exporter must notify the 
receiving country through EPA; the receiving country must consent to 
the intended export; and an Acknowledgement of Consent to Export 
CRTs must accompany the shipment. 40 CFR 261.39(a)(5).
--CRT glass destined for recycling at a CRT glass manufacturer or a 
lead smelter after processing. 40 CFR 261.4(a)(22)(iv), 261.39(c).

    EPA also stated in the preamble to its July 28, 2006 final rule 
that states which are authorized under ``section 3006 of RCRA [42 
U.S.C. 6926] * * * to administer and enforce a hazardous waste program 
within the state in lieu of the federal program * * * are not required 
to adopt federal regulations * * * that are considered less stringent 
than previous federal regulations.'' 71 FR at 41943. Accordingly, 
``States currently regulating CRTs as hazardous waste, including under 
the universal waste rule, would not have to amend their programs, since 
their programs are more stringent than the federal requirements.'' Id. 
at 41944. EPA discussed scenarios ``when used CRTs or processed CRT 
glass [are] transported to and from states with different regulations 
governing these wastes.'' Id. It stated that:

--If a CRT or CRT glass is outside the ``definition of solid waste 
in the state where it is generated'' but being transported to a 
state which regulates these materials as hazardous waste, a manifest 
is not required and the transporter need not have an EPA 
identification number

    for the portion of the trip through the originating state, and 
any other states where the waste is excluded. * * * However, for the 
portion of the trip through the receiving state, and any other 
states that do not consider the waste to be excluded, the 
transporter must have a manifest, except as provided by the 
universal waste rules, and must move the waste in compliance with 40 
CFR Part 263.

Id.
--Conversely, if a CRT or CRT glass is regulated as hazardous waste in 
the generator's state and shipped to a state where it is excluded from 
the definition of solid waste,

    the material must be moved by a hazardous waste transporter, 
while the material is in the generator's state or any other states 
where it is not excluded, except as provided by the universal waste 
rules. The initiating facility would complete a manifest and give 
copies to the transporter as required under 40 CFR 262.23(a). 
Transportation within the receiving state and any other states that 
exclude the material would not require a manifest and need not be 
transported by a hazardous waste transporter. However, it is the 
initiating facility's responsibility to ensure that the manifest is 
forwarded to the

[[Page 25081]]

receiving facility by the transporter and sent back to the 
initiating facility by the receiving facility (see 40 CFR 262.23 and 
262.41).

Id.
    On October 25, 2006, the Alliance (which previously submitted 
comments in EPA's rulemaking proceeding) petitioned the United States 
Court of Appeals for the District of Columbia for review of EPA's July 
28, 2006 final rule. Electronic Industries Alliance v. U.S. 
Environmental Protection Agency, Case No. 06-1359. In its Preliminary 
and Non-Binding Statement of Issues, the Alliance stated that the 
issues to be raised in this case include ``[w]hether EPA's 
determination on transport of CRTs and CRT glass within and between 
states was contrary to the Hazardous Materials Transportation Act 
(`HMTA') and its implementing regulations, which provide that federal 
requirements for transport of hazardous materials, including hazardous 
wastes, generally preempt state requirements that differ.'' On May 18, 
2007, that Court granted the Alliance's motion to hold the case in 
abeyance pending further order of the Court and directed the parties 
``to file motions to govern future proceedings in this case within 30 
days of the completion of the Department of Transportation's 
proceedings'' on the Alliance's application for a preemption 
determination.
    In summary, the Alliance's application challenges MDEP's 
requirements for (1) Classification of CRTs, under which ``whole, 
intact, and unbroken'' CRTs are classified as ``universal waste'' and 
broken CRTs and CRT glass are classified as ``hazardous wastes''; (2) a 
manifest or other shipping paper, (3) specific marking or labeling of 
shipping containers, and (4) a transporter to obtain a license to 
transport broken CRTs and CRT glass as ``hazardous wastes'' or meet 
other conditions (without needing to obtain a license) to transport 
intact CRTs as ``universal waste.'' Two of these conditions are 
discussed in the Alliance's application: the transporter must maintain 
liability insurance in an ``appropriate'' amount (with specified 
minimums), and the transporter must have a plan (kept on the vehicle) 
for the cleanup of any discharge.
    Appendix A to this notice sets forth the text of the Alliance's 
application, a list of the 21 attachments to the application, and 
Attachment No. 1 showing in chart form the requirements the Alliance 
contends are preempted. The complete application including all 
attachments is available in the Docket Operations Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, and at the U.S. 
Government Regulations.gov Web site: http://www.regulations.gov. A copy 
of the Alliance's comments in the EPA rulemaking, its petition for 
review in the Court of Appeals, its motion to hold the case in 
abeyance, and the Court's May 18, 2007 Order are also in the electronic 
docket of this matter and available on-line.

II. Federal Preemption

    Section 5125 of 49 U.S.C. contains express preemption provisions 
relevant to this proceeding. As amended by Section 1711(b) of the 
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2320), 49 
U.S.C. 5125(a) provides that a requirement of a state, political 
subdivision of a state, or Indian tribe is preempted--unless the non-
Federal requirement is authorized by another Federal law or DOT grants 
a waiver of preemption under Sec.  5125(e)--if

    (1) Complying with a requirement of the State, political 
subdivision, or tribe and a requirement of this chapter, a 
regulation prescribed under this chapter, or a hazardous materials 
transportation security regulation or directive issued by the 
Secretary of Homeland Security 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, a regulation prescribed under this 
chapter, or a hazardous materials transportation security regulation 
or directive issued by the Secretary of Homeland Security.

    These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that PHMSA's predecessor agency, the Research and 
Special Programs Administration (RSPA), had applied in issuing 
inconsistency rulings (IRs) prior to 1990, under the original 
preemption provision in the Hazardous Materials Transportation Act 
(HMTA). Pub. L. 93-633 Sec.  112(a), 88 Stat. 2161 (1975). The dual 
compliance and obstacle criteria are based on U.S. Supreme Court 
decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); 
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray 
v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides a non-Federal 
requirement concerning any of the following subjects is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same as'' a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by DHS:

    (A) The designation, description, and classification of 
hazardous material.
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) The designing, manufacturing, fabricating, inspecting, 
marking, maintaining, reconditioning, repairing, or testing a 
package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material.\1\
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    \1\ Subparagraph (E) was editorially revised in Sec. 7122(a) of 
the Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005, which is Title VII of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU), Pub. L. 109-59, 119. Stat. 1891 (Aug. 10, 
2005).

To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).\2\
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    \2\ Additional standards apply to preemption of non-Federal 
requirements on highway routes over which hazardous materials may or 
may not be transported and fees related to transporting hazardous 
material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f) 
which explains that a ``facility at which functions regulated under 
the HMR are performed may be subject to applicable laws and 
regulations of state and local governments and Indian tribes.''
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    The 2002 amendments and 2005 reenactment of the preemption 
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view 
that a single body of uniform Federal regulations promotes safety 
(including security) in the transportation of hazardous materials. More 
than thirty years ago, when it was considering the HMTA, the Senate 
Commerce Committee ``endorse[d] the principle of preemption in order to 
preclude a multiplicity of State and local regulations and the 
potential for varying as well as conflicting regulations in the area of 
hazardous materials transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd 
Sess. 37 (1974). When Congress expanded the preemption provisions in 
1990, it specifically found:

    (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

[[Page 25082]]

and confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) Because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) In order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L. 101-615 Sec.  2, 104 Stat. 3244. (In 1994, Congress revised, 
codified and enacted the HMTA ``without substantive change,'' at 49 
U.S.C. Chapter 51. Pub. L. 103-272, 108 Stat. 745 (July 5, 1994).) A 
United States Court of Appeals has found uniformity was the 
``linchpin'' in the design of the Federal laws governing the 
transportation of hazardous materials. Colorado Pub. Util. Comm'n v. 
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any person (including a state, 
political subdivision of a state, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or tribe may apply to 
the Secretary of Transportation for a determination whether the 
requirement is preempted. The Secretary of Transportation has delegated 
authority to PHMSA to make determinations of preemption, except for 
those concerning highway routing (which have been delegated to the 
Federal Motor Carrier Safety Administration). 49 CFR 1.53(b).
    Section 5125(d)(1) requires notice of an application for a 
preemption determination to be published in the Federal Register. 
Following the receipt and consideration of written comments, PHMSA 
publishes its determination in the Federal Register. See 49 CFR 
107.209(c). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211. A petition for judicial review of 
a final preemption determination must be filed in the United States 
Court of Appeals for the District of Columbia or in the Court of 
Appeals for the United States for the circuit in which the petitioner 
resides or has its principal place of business, within 60 days after 
the determination becomes final. 49 U.S.C. 5127(a).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution, or statutes other than the Federal 
hazardous material transportation law unless it is necessary to do so 
in order to determine whether a requirement is authorized by another 
Federal law, or whether a fee is ``fair'' within the meaning of 49 
U.S.C. 5125(f)(1). A state, local or Indian tribe requirement is not 
authorized by another Federal law merely because it is not preempted by 
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above, 
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), PHMSA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism.'' 64 FR 43255 (Aug. 10, 1999). 
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 Congress intended to preempt state law, 
or the exercise of state authority directly conflicts with the exercise 
of Federal authority. Section 5125 contains express preemption 
provisions, which PHMSA has implemented through its regulations.

IV. Public Comments

    All comments should be directed to whether 49 U.S.C. 5125 preempts 
the MDEP requirements concerning (1) The classification of CRTs and CRT 
glass for transportation for reuse or recycling, (2) a manifest or 
other shipping document to accompany shipments of CRTs and CRT glass 
for reuse or recycling, (3) marking or labeling containers of CRTs or 
CRT glass being transported for reuse or recycling, and (4) the license 
a transporter must obtain to transport broken CRTs and CRT glass or the 
other conditions a transporter must meet (without needing to obtain a 
license) to transport intact CRTs. Comments should set forth in detail 
the manner in which these requirements are applied and enforced with 
respect to shipments of CRTs (both used and unused) and CRT glass to, 
from, through, and within Maine.
    Comments should specifically address whether--and, if so, the 
manner in which--the preemption criteria discussed in Part II, above, 
apply to materials which are not regulated as hazardous materials under 
the HMR, and whether the Maine requirements purport to classify or 
regulate CRTs or CRT glass as a ``hazardous material'' regulated under 
the HMR. In the preamble to a final rule on ``Infectious Substances,'' 
60 FR 48780, 48784 (Sept. 20, 1995), RSPA stated that:

    The HMR do not, however, preempt non-Federal requirements 
imposed on the transportation of materials that are not hazardous 
materials as defined in the HMR. One exception to this general 
principle, however, would be where a non-Federal law or regulation 
requires a method of hazard communication for non-hazardous 
materials sufficiently similar to that prescribed by the HMR for a 
hazardous material that the regulation is ``tantamount to the 
creation of an additional class of hazardous materials with its own 
marking requirements.'' 59 FR 6186, 6192 (Feb. 9, 1994) (preemption 
determination PD-6). Short of this type of circumstance (de facto 
classification of materials as hazardous materials), however, State, 
local and tribal regulation of materials that are not hazardous 
materials is not subject to preemption by the Federal hazmat law.

Compare PD-6(R), ``Michigan Marking Requirements for Vehicles 
Transporting Hazardous and Liquid Industrial Wastes,'' 59 FR at 6192 (a 
State requirement to mark ``licensed industrial waste hauling vehicle'' 
on each side of the vehicle is preempted), with PD-7(R), ``Maryland 
Certification Requirements for Transporters of Oil or Controlled 
Hazardous Substances,'' 59 FR 28913, 28914 (June 3, 1994) (``Operator 
requirements for the transport of oils that are not hazardous materials 
are not subject to preemption by the HMTA.'').
    The existing regulatory scheme for use of the Uniform Hazardous 
Waste Manifest was developed by EPA and DOT in their coordinated final 
rules published in the Federal Register on March 20, 1984, 49 FR 10490, 
10507. In the preamble to its final rule, EPA stated that:

    The Uniform Hazardous Waste Manifest form has been designed to 
allow the listing of both federally-regulated wastes and wastes 
regulated solely by the States. In order to distinguish between 
federally-regulated wastes and other wastes, as required by DOT 
regulations (49 CFR 172.201(a)(1)), generators can add (or States 
may overprint on the form) a hazardous materials (HM) column in the 
space for the U.S. DOT Description. When a waste shipment consists 
of both federally regulated-materials and State-regulated wastes, 
the HM column, if added, must be checked or marked for only those 
line entries which are regulated under federal law as hazardous 
wastes or hazardous materials.

49 FR at 10495. As RSPA discussed in its August 8, 2001 notice of 
proposed rulemaking to revise requirements in the HMR regarding use of 
the Uniform Hazardous Waste Manifest, ``a generator may use the uniform 
manifest form for wastes regulated solely by a State, but a State may 
not `impose enforcement sanctions on a transporter during 
transportation of the shipment for failure of the form to include 
preprinted

[[Page 25083]]

information or optional State information items.' 40 CFR 
217.10(h)(2).'' 66 FR 41490, 41491.
    In a May 9, 1996 interpretation letter addressing certain material 
regulated as a waste by the State of Utah, RSPA confirmed that the 
Uniform Hazardous Waste Manifest form ``was specifically designed to 
allow the listing of both federally regulated wastes and wastes solely 
regulated by a State,'' but that a State waste must not be described on 
the manifest in a manner that indicates or implies that the material is 
a DOT-regulated hazardous material. RSPA also explained in that letter 
(a copy of this letter has been placed in the public docket of this 
proceeding), that ``the word `waste' may not precede the basic 
description for a DOT regulated hazardous material when the material is 
not an EPA hazardous waste'' because ``use of the word `waste' 
preceding the basic description indicates that the material is a 
federally regulated waste.'' RSPA stated that,

    If the material is not subject to the HMR as a hazardous 
material or a federally regulated hazardous waste, ``Utah Regulated 
Only,'' ``non-RCRA waste'' or ``Utah only waste'' may be entered in 
``block 11 of the UHWM document following the name used to identify 
State only regulated waste. ``Utah Hazardous waste, liquid or solid, 
n.o.s.'' is also an acceptable shipping name for a Utah regulated 
waste.

    Accordingly, it is important for commenters to explain and address 
the specific manner in which MDEP regulates the transportation of CRTs 
and CRT glass.

    Issued in Washington, DC on April 23, 2008.
David E. Kunz,
Chief Counsel.

Appendix A

Application of the Electronic Industries Alliance for a Determination 
That the Requirements for Transportation of Cathode Ray Tubes Issued by 
the Maine Department of Environmental Protection Are Preempted By the 
Federal Hazardous Materials Transportation Law

May 8, 2007

    The Electronic Industries Alliance (``EIA'' or ``the Alliance'') 
hereby applies to the Chief Counsel of the Pipeline and Hazardous 
Materials Safety Administration (``PHMSA'') within the U.S. Department 
of Transportation (``DOT'' or ``the Department'') for a determination 
that certain requirements imposed by the Maine Department of 
Environmental Protection (``MDEP'') are preempted by the Federal 
Hazardous Materials Transportation Law (``Federal hazmat law'') and the 
Hazardous Materials Regulations (``HMR'').
    In particular, EIA is seeking a preemption determination with 
respect to the Maine Hazardous Waste Management Regulations (``Maine 
Regulations'') to the extent that they impose requirements on the 
transportation of cathode ray tubes (``CRTs'') and glass removed from 
CRTs (``CRT glass'') that do not qualify as hazardous wastes or 
hazardous materials under the HMR and therefore are not subject to 
federal hazardous material transportation requirements.\1\ This 
Application is being submitted pursuant to 49 U.S.C. 5125(d)(l) and 49 
CFR 107.203.
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    \1\ A CRT is generally defined as ``a vacuum tube, composed 
primarily of glass, which is the visual or video display component 
of an electronic device,'' such as a television or computer monitor. 
See, e.g., 71 FR 42,928, 42,947 (July 28, 2006) (to be codified at 
40 CFR 260.10).
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I. Introduction

    The Maine Regulations impose stringent requirements on the 
transport of used CRTs and CRT glass, which vary depending upon whether 
the CRTs are broken or intact. See generally Section II below. Broken 
CRTs and CRT glass are subject to the full state requirements for 
transport of hazardous wastes, including hazardous waste manifesting, 
labeling/marking of the wastes, licensing of the transporters, and 
related transporter requirements (e.g., insurance and emergency 
response plans). Intact CRTs are subject to reduced ``universal waste'' 
requirements under the Maine Regulations. However, even under these 
requirements, intact CRTs must be transported with specific shipping 
papers, labels, and markings, and transporters must comply with a 
number of requirements (again including insurance and emergency 
response plan requirements).
    In contrast, the HMR generally does not impose any requirements on 
the transport of CRTs and CRT glass (regardless of whether they are 
broken or intact). See generally Section III below. Such materials are 
not hazardous wastes under the HMR because they have been conditionally 
excluded from the definition of solid and hazardous waste by the U.S. 
Environmental Protection Agency (``EPA'' or the ``the Agency''), as 
long as they are destined for recycling. CRTs and CRT glass also do not 
meet any other criteria for classification as hazardous materials under 
the HMR and therefore generally are not subject to any requirements 
under the HMR.
    Because the Maine Regulations impose requirements on the transport 
of CRTs and CRT glass that are not HMR-regulated, the state rules are 
subject to preemption. See generally Section IV below. The Federal 
hazmat law mandates that state requirements for shipping papers and 
marking/labeling be ``substantively the same'' as the HMR requirements. 
The Maine rules for CRTs and CRT glass do not meet this standard. The 
Federal hazmat law also requires that state rules for the designation 
and classification of hazardous materials must be ``substantively the 
same'' as the corresponding HMR rules. Because the Maine rules classify 
CRTs and CRT glass in a different way than the HMR, the state 
classification and all rules based on that classification are 
preempted. All of the Maine rules for CRTs and CRT glass are preempted 
in this way. They are also preempted because they cause confusion, 
interfere with the flow of trade, and otherwise serve as an obstacle to 
the purposes of the Federal hazmat law. These conclusions are not 
affected by the fact that EPA has ``authorized'' some of the Maine 
hazardous waste regulations for the purposes of another statute, 
because the state transport requirements for CRTs and CRT glass are not 
part of the authorized program and, in any event, preemption under the 
Federal hazmat law operates independently of any such authorization.
    EIA represents a wide range of companies that are directly affected 
by the Maine Regulations at issue, because these companies manufacture, 
sell, or distribute CRTs, use CRTs, and collect/recycle used CRTs and/
or CRT glass. See generally Section V below. Accordingly, EIA requests 
that DOT issue a determination that the Maine Regulations are preempted 
by the Federal hazmat law and the HMR to the extent that they impose 
requirements on the transport of CRTs and CRT glass that are not 
hazardous wastes or hazardous materials under the HMR. A summary of the 
key Maine requirements that are preempted and the reasons why such 
requirements are preempted is provided in Attachment 1.

II. State Requirements for Which a Preemption Determination is 
Requested

    Under the Maine Regulations, shipments of used CRTs and CRT glass 
are subject to a variety of state transportation requirements. As 
discussed below, such materials generally qualify as hazardous wastes 
under the MDEP rules, and those rules impose stringent requirements on 
the transportation of hazardous wastes. Accordingly, broken CRTs and 
CRT glass must be shipped in accordance

[[Page 25084]]

with Maine's hazardous waste standards. The Maine Regulations designate 
intact CRTs as ``universal wastes'' which are not subject to the 
general rules for hazardous waste transport. However, the state 
regulations impose significant alternative requirements for 
transportation of such wastes. Each of these points is discussed 
separately below.

A. Used CRTs and CRT Glass Generally Qualify as Hazardous Wastes Under 
the Maine Regulations

    The Maine Regulations define ``waste'' as ``any useless, unwanted 
or discarded substance or material, whether or not such substance or 
material has any other or future use * * * [including] materials which 
are used in a manner constituting disposal, burned for energy recovery, 
reclaimed or accumulated speculatively.'' See 06 096 Code Me. R. ch. 
850, Sec.  3(A)(2) (hereinafter, references to the Maine Regulations 
(``Me. Regs.'') will include only the chapter and section number within 
the title 06 096).\2\ Used CRTs and CRT glass clearly can qualify as 
wastes under this definition. For example, if a user of CRT computer 
monitors decides to upgrade to flat-panel displays and ships the CRTs 
to a recycler for recovery of lead and/or glass, the CRTs clearly are 
``unwanted'' materials sent to be ``reclaimed,'' and thus would be 
classified as wastes under the Maine Regulations.\3\
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    \2\ The full text of the relevant Maine Regulations, including 
all of the regulations cited by EIA in this document, is provided in 
Attachments 2 through 6. These and all other attachments are 
incorporated by reference as an integral part of this Application. 
The regulations are also readily available to the public online at 
http://www.maine.gov/dep/rwm/rules/index.htm.
    \3\ Recycling for recovery of lead and/or glass is a common 
method for managing used CRTs. See, e.g, 71 FR at 42929 (``Many CRTs 
that cannot be reused are sent for recycling, which consists of 
disassembly to recover valuable materials from the CRTs, such as 
lead or glass.''). CRTs recycled in this way are being 
``reclaimed,'' as that term is used in the Maine definition of 
waste. See Me. Regs., ch. 850, 3(A)(2), Note (``It is intended that 
the term[] `materials which are * * * reclaimed. * * *' should 
include all materials covered by [that term] in 40 CFR [Part] 261[ 
]''); 40 CFR 26l.l(c)(4) (``A material is `reclaimed' if it is 
processed to recover a usable product. * * * Examples [include] 
recovery of lead values from spent batteries.'').
---------------------------------------------------------------------------

    Used CRTs and CRT glass that qualify as wastes in Maine also 
generally qualify as hazardous wastes under the Maine Regulations. 
Under the Maine Regulations, a waste is defined as a hazardous waste if 
``[i]t exhibits any of the characteristics of hazardous waste 
identified [by MDEP].'' See Me. Regs., ch. 850, Sec.  3(A)(2)(a)(ii)c. 
One such characteristic is the characteristic of toxicity, which 
specifies that a waste is hazardous if, when tested using the Toxicity 
Characteristic Leaching Procedure (``TCLP''), it yields an extract that 
contains one or more hazardous constituents (e.g., lead) at levels 
above specified regulatory levels. See Me. Regs., ch. 850, Sec.  
3(B)(5). Color CRTs commonly exhibit the toxicity characteristic due to 
the fact that they contain substantial amounts of leachable lead. See, 
e.g., 71 FR at 42930 (``most color CRTs leach lead in the TCLP test at 
concentrations above the TC [toxicity characteristic] regulatory 
level'').\4\ Accordingly, when such CRTs become wastes, they are also 
hazardous wastes. Similarly, because the leachable lead is contained 
primarily in the CRT glass,\5\ when such glass becomes a waste, it also 
is subject to regulation as a hazardous waste in Maine. Monochrome CRTs 
generally do not exhibit the TC and thus are not hazardous wastes. See, 
e.g., 71 FR at 42931 (``black and white monitors do not generally fail 
the TC''). Therefore, this Application focuses on color CRTs. To avoid 
the need to distinguish continuously between color and monochrome CRTs, 
we generally use the term ``CRTs'' to refer only to CRTs that exhibit 
the TC (i.e., color CRTs).
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    \4\ Even though the cited EPA statement regarding the 
characteristics of CRTs was made in the context of the federal TC, 
it applies with equal force under the Maine TC. The federal and 
state TCs use the same TCLP test. Compare 40 CFR 261.24 with Me. 
Reg., ch. 850, Sec.  3(B)(5), Appendix II (incorporating the TCLP). 
The two TCs also use the same regulatory limits for lead and other 
metals. Compare 40 CFR 261.24, Table 1 with Me. Regs., ch. 850, 
Sec.  3(B)(5), Table 1.
    \5\ See 71 FR at 42930 (``Manufacturers generally employ 
significant quantities of lead in the glass used to make color 
CTRs.'').
---------------------------------------------------------------------------

B. The Maine Regulations Impose Numerous Stringent Requirements on 
Transportation of Hazardous Wastes

    Under the Maine Regulations, shipments of hazardous wastes 
generally are subject to a variety of stringent standards. The key 
requirements for hazardous waste transporters are set forth in Chapter 
853, while the predominant shipping paper requirements are set forth in 
Chapter 857. Additional transport-related requirements for hazardous 
wastes are set forth in other parts of the Maine Regulations. See, 
e.g., Me. Regs., ch. 851, Sec. Sec.  7 and 8 (transportation and 
pretransportation requirements for hazardous waste generators). For 
purposes of the current discussion, we focus primarily on three sets of 
state hazardous waste transportation requirements: (1) The hazardous 
waste manifesting requirements, (2) the hazardous waste labeling/
marking requirements, and (3) the licensing requirements for hazardous 
waste transporters.
1. Maine Hazardous Waste Manifesting Requirements
    The Maine Regulations mandate that shipments of hazardous wastes 
must be accompanied by a Uniform Hazardous Waste Manifest 
(``Manifest''). See, e.g., Me. Regs., ch. 857, Sec.  8(A)(2) (``A 
transporter of hazardous waste shall * * * [e]nsure that [a] manifest 
accompanies the hazardous waste''). The state regulations include a 
number of Manifest-related requirements which apply to the generators 
of hazardous wastes, transporters, and owners and operators of 
hazardous waste facilities. See generally Me. Regs., ch. 857. 
Generators, for example, are required to prepare a Manifest for each 
shipment using the prescribed form and including specified information. 
See Me. Regs., ch. 857, Sec. Sec.  5 and 7.\6\ The generators also must 
keep a signed copy of the Manifest, send copies to the generating and 
receiving states, and provide the original and additional copies to the 
transporter. See Me. Regs., ch. 857, Sec.  7(A). The transporter is 
required to keep the Manifest with the hazardous waste and obtain a 
signature from the receiving facility upon arrival. See Me. Regs., ch. 
857, Sec.  8(A). The transporter must keep a copy of this signed 
Manifest and provide the original and copies to the owner or operator 
of the receiving facility. Id. The owner/operator likewise must keep a 
copy of the completed Manifest and send copies to the generator, the 
generating state, and the destination state. See Me. Regs., ch. 857, 
Sec.  9(A)(3). If the generator does not receive a completed Manifest 
from the owner/operator in a timely fashion, the generator must notify 
MDEP and/or take actions to resolve the situation. See Me. Regs., ch. 
857, Sec. Sec.  7(E)-(H).
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    \6\ The Maine Regulations specify that, at least in some cases, 
an MDEP-approved Manifest form must be utilized and ``all state-
optional information required by the manifest form'' must be 
provided. See Me. Regs., ch. 857, Sec.  5(C). EPA, however, has 
recently issued a new Manifest form which is intended to supersede 
all state Manifest forms, including Maine's, and does not provide 
for state-optional information to be included on the form. See 70 FR 
10776, 10785 (March 4, 2005) (``all fields set out in this rule's 
revised form are mandatory. * * * When the revised form is in use * 
* * there will no longer be [state] optional fields''). MDEP has 
issued guidance directing generators to use the new federal Manifest 
form instead of the form previously approved for use in Maine. See 
http://www.maine.gov/dep/rwm/hazardouswaste/guidanceuniform.htm 
(copy provided in Attachment 7). However, MDEP has stated that when 
this form is used to ship CRTs, ``item counts of the waste must be 
supplied in Item 14 [of the form].'' Id.

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[[Page 25085]]

2. Maine Hazardous Waste Labeling/Marking Requirements
    The Maine Regulations also require that packages of hazardous 
wastes be labeled and marked in certain ways for transportation. See 
Me. Regs., ch. 851, Sec.  8(A) (``Before a generator removes or allows 
the removal of hazardous waste from the site of its generation, he 
shall [comply with specified labeling and marking requirements]''); Me. 
Regs., ch. 853, Sec.  8(G) (``A [transporter] shall not accept for 
transport or transport hazardous wastes which are unlabeled''). Some of 
the state labeling/marking requirements simply mandate compliance with 
any applicable provisions of the HMR. See Me. Regs., ch. 851, 
Sec. Sec.  8(A)(2)-(3).\7\ However, the MDEP rules go further and 
require that ``each container of 110 gallons or less used in [hazardous 
waste] transportation'' be marked with the words ``HAZARDOUS WASTE--
Federal Law Prohibits Improper Disposal'' and related information 
(e.g., the name and address of the generator, the relevant Manifest 
number, and government contact information). See Me. Regs., ch. 851, 
Sec.  8(A)(4).
---------------------------------------------------------------------------

    \7\ As discussed in Section III below, however, CRTs and CRT 
glass generally are not subject to any requirements of the HMR.
---------------------------------------------------------------------------

3. Maine Hazardous Waste Transporter Licensing Requirements
    Under the Maine Regulations, transporters of hazardous wastes are 
generally required to have a transporter license issued by MDEP. See 
Me. Regs., ch. 853, Sec.  4(A)(l) (``No person shall * * * [f]unction 
as a [hazardous waste] transporter without a transporter license issued 
by the Department''); Me. Regs., ch. 851, Sec.  7(A) (``A generator 
shall not offer hazardous waste in any quantity to a transporter who is 
not licensed by the State of Maine to transport hazardous waste nor 
shall he transport the waste himself without a transporter license.''). 
Hazardous waste transporters are also subject to a variety of 
substantive state requirements. See generally Me. Regs., ch. 853. For 
example, they must maintain liability insurance covering the licensed 
activity ``in an amount appropriate for [the] license activity and for 
the risk involved'' but in no case less than $500,000. See Me. Regs., 
ch. 853, Sec. Sec.  5(B)(9) and 8(B). In addition, hazardous waste 
transporters must have ``a plan for the cleanup of discharges of [the] 
hazardous wastes which [they] transport[ ]'' and must keep a copy of 
the plan on each conveyance (e.g. truck). See Me. Regs., ch. 853, Sec.  
8(F).

C. Broken CRTs and CRT Glass Must Be Shipped in Accordance With the 
Maine Hazardous Waste Regulations

    Because used CRTs and CRT glass qualify as hazardous wastes in 
Maine, they generally must be shipped in accordance with the stringent 
hazardous waste transportation requirements described above. The Maine 
Regulations allow intact CRTs to be shipped under special ``universal 
waste'' provisions described in the following section, but such 
provisions do not apply to broken CRTs and CRT glass. The Maine 
Regulations specify that ``[u]niversal waste shipping requirements 
require that the waste be * * * [w]hole, intact, and unbroken.'' See 
Me. Regs., ch. 850, Sec.  3(A)(13)(e)(xvii)a. Thus, broken CRTs are not 
eligible for shipment as universal wastes. Instead, they must be 
shipped in accordance with the general state requirements for hazardous 
wastes (e.g., with a Manifest). See Section II.B above. The same is 
true for CRT glass resulting from CRT breakage.
    While there may be a narrow exception for small quantities of 
broken CRTs or CRT glass that result from accidental breakage,\8\ it is 
clear that intentionally broken CRTs and large quantities of 
accidentally broken CRTs are not. Instead, assuming such CRTs are 
hazardous, they must be managed in accordance with the ordinary state 
requirements for hazardous wastes. See Me. Regs., ch. 850, Sec.  
3(A)(13)(viii). As discussed in Section II.B above, such requirements 
include manifesting, labeling/marking, and transporter licensing 
requirements.\9\
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    \8\ The Maine Regulations state that ``waste and residues from 
incidental breakage [of universal wastes] may still be managed as a 
universal waste.'' See Me. Regs., ch. 850, Sec.  3(A)(13)(e)(vii). 
Guidance issued by MDEP similarly states that ``[i]ncidental 
breakage often (10) or fewer * * * CRTs may still be handled as 
universal waste.'' See MDEP, ``Universal Waste Handbook'' (March 
2007) (``Handbook'') at 8, provided in Attachment 8 (also available 
at http://www.maine.gov/dep/rwm/hazardouswaste/pdf/
uwhandbookmarch2007.pdf). However, the use of the word ``handled'' 
in the guidance arguably suggests that accidentally broken CRTs 
cannot be transported as universal wastes, given that the 
regulations appear to defme handling to include only treatment, 
storage, and disposal. See Me. Regs., ch. 850, Sec.  3(A)(2) (``the 
phrase `treat, store, and/or dispose'' shall mean `handle'''). 
Moreover, the MDEP guidance paraphrases the regulation by saying 
that ``[t]he total amount of broken * * * CRTs in storage may exceed 
ten (10) items provided no breakage event exceeds the incidental 
limits.'' See Handbook at 8 (emphasis added). On the other hand, the 
same guidance recognizes that incidental breakage may occur during 
transport. Id. (``If frequent breakage is occurring, the generator, 
facility and transporter should review their handling procedures and 
packing materials to ensure that they are adequate for the job'' 
(emphasis added)).
    \9\ Because small quantities of accidentally broken CRTs and CRT 
glass from such breakage may be regulated the same way as intact 
CRTs under the Maine Regulations (i.e., as universal wastes), see 
note 8 above, we intend all references to ``broken CRTs'' (in the 
context of the Maine Regulations) throughout the remainder of this 
Application to denote broken CRTs other than those (if any) that 
might be eligible for transport as universal wastes under the state 
rules. We intend all references to ``intact CRTs'' (in the context 
of the Maine Regulations) to denote intact CRTs and any broken CRTs 
that might be eligible for transport as universal wastes.
---------------------------------------------------------------------------

D. The Maine Regulations Do Not Require Intact CRTs To Be Shipped as 
Hazardous Wastes, But Impose Alternative Transportation Requirements 
for Such Wastes

    The Maine Regulations classify intact CRTs as ``universal wastes.'' 
See Me. Regs., ch. 850, Sec.  3(A)(13)(b)(i) (defining universal wastes 
to include CRTs); Section II.C above (noting that broken CRTs and CRT 
glass are generally not eligible for transportation as universal 
wastes). As such, intact CRTs are subject to somewhat less stringent 
state transportation requirements than other hazardous wastes.\10\ 
Nonetheless, the transportation requirements for intact CRTs remain 
significant. We focus here on the same types of requirements discussed 
above for ``ordinary'' hazardous wastes: (1) Shipping paper 
requirements, (2) labeling/marking requirements, and (3) the 
requirements for transporters).\11\
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    \10\ The Handbook referenced in note 8 above provides a general 
guide to the Maine universal waste rule, including key excerpts of 
the rule. See Attachment 8.
    \11\ As discussed in Section III.A below, the federal rules do 
not classify' CRTs or CRT glass as universal wastes, but instead 
conditionally exclude such materials from the federal definition of 
solid and hazardous waste. Nevertheless, it is worth noting that the 
Maine universal waste requirements are considerably more onerous 
than the federal universal waste requirements (which apply to other 
materials, such as batteries, mercury-containing equipment, and 
light bulbs). See generally 40 CFR Part 273. For example, even 
though the Maine requirements for universal wastes dictate the use 
of specific shipping documents (as discussed below), the federal 
universal waste rule provides for much greater flexibility. In 
particular, under the federal regulations, some universal waste 
shipments do not require tracking, while others may be tracked 
without a shipping document (e.g., using logs or other records that 
do not accompany the shipments). See 40 CFR 273.19 (``A small 
quantity handler of universal waste is not required to keep records 
of shipments of universal waste.''), 273.39 (large quantity handlers 
of universal wastes must track their shipments, but can do so in 
several ways other than by use of shipping papers).
---------------------------------------------------------------------------

1. Maine Universal Waste Shipping Paper Requirements
    Under the Maine Regulations, intact CRTs are allowed to be shipped 
without a Manifest, but only if other specified shipping documents are 
utilized. See Me. Regs., ch. 857, Sec.  6(B). The two sanctioned 
alternatives are Recyclable Hazardous Material Uniform Bills of

[[Page 25086]]

Lading (``UBOLs'') and log sheets. Id.\12\ MDEP also can approve use of 
another form, on a case-by-case basis. Each option is discussed briefly 
below).\13\
---------------------------------------------------------------------------

    \12\ See also Me. Regs., ch. 850, Sec.  3(A)(13)(e)(iii) 
(requiring generators to track universal wastes with a Manifest or 
UBOL, with certain limited exceptions which are discussed below); 
Sec.  3(A)(13)(e)(xvii) (universal waste shipments must be 
``[a]ccompanied by a [UBOL] or manifest (if applicable)''); Sec.  
3(A)(13)(e)(xviii) (generators of universal wastes must ``[c]omply 
with the [UBOL], manifest, or log requirements''); Sec.  
3(A)(13)(e)(xxi) a (log requirements for small universal waste 
generators); Sec.  3(A)(13)(f)(i) (central accumulation facilities 
must track universal wastes ``via a manifest * * * via a [UBOL], or 
by a shipping log'').
    \13\ The universal waste shipping paper requirements discussed 
in this section and the other universal waste transport requirements 
discussed in Sections II.D.2 and II.D.3 below apply not only to used 
CRTs and CRT glass generated by institutions (e.g., business and 
government organizations) but also to CRTs and CRT glass generated 
by households. See Me. Regs., ch. 415, Sec.  3(B)(1) (household 
electronic wastes, including CRTs, managed under the Maine 
collection and recycling program for such wastes must be transported 
in accordance with the Maine universal waste requirements), and ch. 
850, Sec.  3(A)(13)(d) (mixtures of household wastes and universal 
wastes must be managed as universal wastes).
---------------------------------------------------------------------------

    The primary alternative shipping document is the UBOL, which is 
similar to a Manifest inasmuch as it requires similar information, 
requires use of a specific format, and is implemented in much the same 
manner as a Manifest. See Me. Regs., ch. 857, Sec.  4 (incorporating by 
reference into the Maine Regulations the UBOL form approved by the 
Maine Board of Environmental Protection); Me. Regs., ch. 857, Sec.  
6(B) (stating that UBOLs are subject to the same administrative 
requirements as Manifests, including the requirements discussed above 
for generators, transporters, and owners and operators of hazardous 
waste facilities). A copy of the approved UBOL form is provided in 
Attachment 8 (Handbook) at Appendix H.
    Another option, which is available only for central accumulation 
facilities sending universal wastes to an instate consolidation 
facility, is for a log sheet containing specified information to 
accompany the waste shipment. See Me. Regs., ch. 857, Sec.  13(B).\14\ 
The Maine Regulations do not require use of a specific log form, 
although certain data elements are mandatory (e.g., the name, address, 
and phone number of the generator (unless the generator of the waste 
was a household, in which case a notation of this fact is sufficient), 
the type and quantity of universal waste delivered, and the date of 
delivery). See Me. Regs., ch. 857, Sec.  13(B)(4).\15\ The 
consolidation facility receiving the wastes is required to ensure that 
the log sheets are accurately completed and to submit a quarterly waste 
tracking document in a format specified by MDEP. See Me. Regs., ch. 
857, Sec.  13(C)(2).\16\
---------------------------------------------------------------------------

    \14\ The Maine Regulations define a central accumulation 
facility to include ``(1) [a facility where] a generator 
consolidates its own universal wastes from the generator's multiple 
facilities; or (2) a licensed solid waste transfer station or 
recycling center where universal waste generators may take their 
universal wastes; or (3) a facility where less than 200 universal 
waste items are collected from generators that are serviced by the 
facility.'' See Me. Regs., ch. 850, Sec.  3(A)(13)(a)(iii). A 
consolidation facility is defined as ``a facility where universal 
waste is consolidated and temporarily stored while awaiting shipment 
to a recycling, treatment or disposal facility.'' See Me. Regs., ch. 
850, Sec.  3(A)(13)(a)(v).
    \15\ Even though the Maine Regulations do not mandate the use of 
a particular form for logs, MDEP has issued guidance stating that 
central accumulation facilities ``must'' use particular forms 
developed for this purpose. See Handbook at 11, Paragraph (b)(ii); 
id. at 25-28 (the prescribed log forms).
    \16\ A log sheet also can be used to track shipments from a 
small universal waste generator to an instate central accumulation 
facility or an instate consolidation facility. See Me. Regs., ch. 
857, Sec.  13(A)(2). In these cases, however, the log sheet does not 
have to accompany the shipments. Id. (log sheets for these shipments 
can be completed ``upon the generator's arrival at the facility''). 
For these purposes, a small universal waste generator is defined as 
``a person or entity that generates or accumulates on site no more 
than 200 universal waste items * * * at a time or in any given 
month. * * *'' See Me. Regs., ch. 850, Sec.  3(A)(13)(a)(xiii).
---------------------------------------------------------------------------

    The final option available is the use of an MDEP-approved 
alternative form. See Me. Regs., ch. 857, Sec.  6(B) (``A person may 
transport universal wastes [using] an alternative form approved by the 
Department''); Handbook at 11 (``The Department on a case by case basis 
may approve alternative shipping documents for use''). As far as we are 
aware, no alternative forms for CRTs have been approved by MDEP.
2. Maine Universal Waste Labeling/Marking Requirements
    Under the Maine Regulations, containers of intact CRTs must be 
marked during transportation with the words ``Waste Cathode Ray Tube.'' 
See Me. Regs., ch. 850, Sec.  3(A)(13)(e)(xxii)e (marking requirement 
for intact CRTs); Me. Regs., ch. 853, Sec.  11(L) (``[a] transporter 
shall not accept for transport or transport universal wastes which are 
unlabeled''). The containers also must be marked or labeled in 
accordance with any applicable requirements of the HMR. See Me. Regs., 
ch. 853, Sec.  11(Q).
3. Maine Universal Waste Transporter Requirements
    Under the Maine Regulations, transporters of universal wastes do 
not require transporter licenses, as long as they comply with certain 
state-imposed requirements. See Me. Regs., ch. 853, Sec. Sec.  10(A) 
and 11. Many of the requirements for universal waste transporters are 
the same or similar to the requirements for hazardous waste 
transporters, as discussed in Section II.B.3 above. For example, 
universal waste transporters must maintain liability insurance coverage 
in an amount ``appropriate for the transporting of universal waste and 
the risk involved, but in no case less than $1,000,000 annual aggregate 
coverage.'' See Me. Regs., ch. 853, Sec.  11(H). In addition, they must 
have a plan ``for the clean up of discharges of universal waste'' and 
must keep a copy of the plan on each conveyance. See Me. Regs., ch. 
853, Sec.  11(K).

III. Federal Requirements Against Which the State Requirements Should 
Be Compared

    Under the HMR, CRTs and CRT glass generally do not have to be 
shipped as hazardous wastes or, indeed, as hazardous materials. As 
discussed below, CRTs and CRT glass generally do not qualify as 
hazardous wastes under the HMR and therefore do not have to be 
transported in accordance with the HMR requirements applicable to 
hazardous wastes (e.g., the Manifest requirements). Moreover, CRTs and 
CRT glass generally are not hazardous materials, and thus are not 
subject to other HMR requirements.

A. CRTs and CRT Glass Generally Are Not Hazardous Wastes Under the HMR

    Under the HMR, a ``hazardous waste'' is defined as ``any material 
that is subject to the Hazardous Waste Manifest Requirements of the 
U.S. Environmental Protection Agency specified in 40 CFR part 262.'' 
See 49 CFR 171.8. The referenced EPA requirements, in turn, require 
generators of hazardous wastes--as defined in the federal regulations 
at 40 CFR Part 261--to prepare and use a Manifest for all shipments of 
such wastes (with certain exceptions that are not relevant here). See, 
e.g., 40 CFR 262.20(a) (requiring a Manifest for shipments of hazardous 
wastes); 261.1(a) (``This part [Part 261] identifies those [materials] 
which are subject to regulation as hazardous wastes under part[ ] 
262''). Thus, only materials that are hazardous wastes under Part 261 
can qualify as hazardous wastes under the HMR.
    CRTs and CRT glass generally are not hazardous wastes under Part 
261. Hazardous wastes are defined under Part 261 as a subset of solid 
wastes. See 40 CFR 261.3. For the reasons set forth below, CRTs and CRT 
glass generally do not qualify as solid wastes:
     CRTs Destined for Use, Reuse, or Repair. EPA has stated 
that for purposes

[[Page 25087]]

of Part 261, CRTs destined for use, reuse, evaluation for potential 
reuse, or repair are generally ``considered to be products in use 
rather than solid wastes.'' See 71 FR at 42929. For example, ``repairs 
do not constitute waste management.'' Id.
     Unused CRTs Destined for Reclamation. According to EPA, 
``unused CRTs [are] unused commercial chemical products [which] are not 
solid wastes when sent for reclamation.'' 67 FR 40508, 40,511 (June 12, 
2002); see also 40 CFR Sec.  261.2(c)(3) (listed commercial chemical 
products are not solid wastes when reclaimed); 50 FR 14216, 14219 
(April 11, 1985) (un-listed commercial chemical products are likewise 
not solid wastes when reclaimed).
     Used, Intact CRTs Destined for Reclamation. Under Part 
261, ``[u]sed, intact CRTs * * * are not solid wastes within the United 
States unless they are disposed, or unless they are speculatively 
accumulated * * * by CRT collectors or glass processors.'' See 71 FR at 
42948 (to be codified at 40 CFR 261.4(a)(22)(i)) (effective January 29, 
2007). Significantly, used, intact CRTs that are speculatively 
accumulated by a CRT user are not solid wastes under this rule. Id. 
Moreover, even if a CRT collector or CRT glass processor accumulates 
such CRTs speculatively, the CRTs will ``no longer [be] in this 
[speculative accumulation] category once they are removed from 
accumulation for recycling.'' See 40 CFR 261.l(c)(8) (definition of 
speculative accumulation). Thus, used, intact CRTs generally will not 
be solid wastes when being transported (unless they are being 
transported specifically for disposal).\17\
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    \17\ If the used, intact CRTs are exported for reclamation, they 
must not only not be speculatively accumulated, but also must meet 
certain notice and consent requirements in order to be excluded from 
the federal definitions of solid and hazardous wastes. See 71 FR at 
42948-49 (to be codified at 40 CFR 261.4(a)(22)(ii), 261.40) 
(effective January 29, 2007). For example, the exporter must notify 
EPA of the intended export and refrain from initiating the export 
unless and until the Agency sends back an acknowledgement that the 
receiving country has consented to the export. Id. (to be codified 
at 40 CFR 261.39(a)(5)). Copies of the acknowledgement must 
accompany the shipment and must be retained by the exporter. Id (to 
be codified at 40 CFR 261.39(a)(5)(vii), (ix)).
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     Used, Broken CRTs Destined for Reclamation. Under Part 
261, used, broken CRTs destined for recycling are not solid wastes if 
they meet certain requirements for storage and labeling, and if they 
are not speculatively accumulated or used in a manner constituting 
disposal. See 71 FR at 42948-49 (to be codified at 40 CFR 
261.4(a)(22)(iii), 261.39(a)) (effective January 29, 2007). During 
transportation, the key requirements are that the used, broken CRTs 
must be placed in a container (i.e., package or vehicle) that minimizes 
releases and is labeled or marked with specified phrases (e.g., ``Used 
cathode ray tubes--contains leaded glass'' and ``Do not mix with other 
glass materials''). Id. (to be codified at 40 CFR 261 .39(a)(3)). As 
noted above, the speculative accumulation provision is generally not 
relevant while CRTs are being transported. Thus, used, broken CRTs that 
are properly contained and labeled will not be solid wastes during 
transportation, unless they are being sent for disposal or use 
constituting disposal.\18\
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    \18\ If the used, broken CRTs are exported for reclamation, they 
must also comply with the notice and consent requirements discussed 
in note 17 above. See 71 FR at 42948-49 (to be codified at 40 CFR 
261.39(a)(5)) (effective January 29, 2007).
---------------------------------------------------------------------------

     CRT Glass. Under Part 261, ``[g]lass from used CRTs that 
is destined for recycling at a CR1 glass manufacturer or a lead smelter 
after processing is not a solid waste unless it is speculatively 
accumulated.'' See 71 FR at 42948-49 (to be codified at 40 CFR 
261.4(a)(22)(iv), 261.39(c)) (effective January 29, 2007). As noted 
above, the speculative accumulation provision is generally not relevant 
while materials are being transported. Thus, processed CRT glass 
destined for the specified types of recycling will not be solid wastes 
during transportation. CRT glass sent for other types of recycling 
likewise will generally not be solid wastes if they are ``legitimately 
used or reused without reclamation as an effective substitute for a 
commercial product, or as an ingredient in an industrial process to 
make a product pursuant to 40 CFR 261.2(e)(1)(i) or (ii).'' Id. at 
42936 (noting further that the regulatory exclusions for these 
materials do not apply if the CRT glass is speculatively accumulated or 
used in a manner constituting disposal).
    For these reasons, CRTs and CRT glass generally will not be solid 
or hazardous wastes during transport under 40 CFR Part 261 and will not 
be subject to the manifest requirements of Part 262. Because the HMR 
defines hazardous wastes as materials that are subject to Part 262 
manifest requirements, see 49 CFR 171.8, CRTs and CRT glass also 
generally will not be hazardous wastes for purposes of the HMR.\19\
---------------------------------------------------------------------------

    \19\ CRTs and CRT glass may be hazardous wastes to the extent 
that they are destined for disposal or destined for recycling 
without meeting the requirements of the EPA exclusions discussed 
above (e.g., if they are used, intact CRTs destined for reclamation, 
but are not properly contained and labeled). This Application, 
however, is focused on CRTs and CRT glass that have been excluded 
from the federal definition of hazardous waste.
---------------------------------------------------------------------------

B. CRTs and CRT Glass That Are Not Hazardous Wastes Under the HMR Are 
Not Subject to Federal Manifesting or Other Requirements for Transport 
of Hazardous Wastes

    Under the HMR, Manifests are required only for shipments of 
hazardous wastes. See 49 CFR 172.205. Accordingly, to the extent that 
CRTs and CRT glass do not qualify as hazardous wastes under the HMR, as 
discussed above, they do not have to be shipped with Manifests. See, 
e.g., Letter from Charles E. Bells, Senior Transportation Specialist. 
Office of Hazardous Materials Standards, DOT, to Phil Stewart, The Dow 
Chemical Company (April 21, 2006) (where ``EPA does not require 
preparation of [a] manifest [for a material] * * * [the] material does 
not meet the definition of a hazardous waste in Sec.  171.8, and the 
Department of Transportation does not require a manifest to be 
created''), provided in Attachment 9.
    CRTs and CRT glass likewise are not subject to other HMR 
requirements that apply only to hazardous wastes. See, e.g., 49 CFR 
171.16(a) (a detailed incident report is required when ``any quantity 
of hazardous waste has been discharged during transportation''); 
172.101(b)(9) (``the proper shipping name for a hazardous waste * * * 
shall include the word 'Waste'''); 172.201(e) (``For a hazardous waste, 
the shipping paper copy must be retained for three years''); 
172.301(a)(2) (non-bulk packagings of hazardous waste must be marked 
with the word ``waste'' and/or EPA-specified language (e.g., 
``HAZARDOUS WASTE--Federal Law Prohibits Improper Disposal'')).

C. CRTs and CRT Glass That Are Not Hazardous Wastes Under the HMR 
Generally Are Not Hazardous Materials for Any Other Reason

    For purposes of the HMR, hazardous materials are defined to include 
not only hazardous wastes, but also ``hazardous substances, ... marine 
pollutants, elevated temperature materials, materials designated as 
hazardous in the Hazardous Materials Table * * * and materials that 
meet the defining criteria for [any] hazard classes and divisions.'' 
See 49 CFR 171.8. As discussed below, CRTs and CRT glass do not fall 
within any of these other categories of hazardous materials. Thus, to 
the extent that CRTs and CRT glass do not qualify as hazardous wastes 
under the HMR, they also are not hazardous materials.

[[Page 25088]]

    During the development of EPA's current regulatory exclusions for 
CRTs and CRT glass, as discussed above, the Agency consulted with a 
senior DOT official about the HMR status of these materials, and was 
informed that the only way they may be hazardous materials is if they 
are hazardous wastes. According to EPA:

    John Gale, DOT [currently Chief of Standards Development in the 
DOT Office of Hazardous Materials Standards], confirmed that the 
[CRT] materials we are discussing are not individually listed as DOT 
hazardous materials and thus currently are hazardous materials only 
if they are hazardous waste, which for DOT's hazardous materials 
purposes is defined as anything requiring a manifest. Thus, if [as 
is now the case] the streamlined system [of EPA exclusions] does not 
require a manifest, these materials will not be hazardous materials 
and will not be subject to the DOT hazardous material regulations.

    See EPA, ``Notes from 4/24/98 CRT Project Team Conference Call on 
Transportation/Packaging Issue'' (April 28, 1998) (``CRT Project Team 
Notes'') at 1, provided in Attachment 10.
    DOT's conclusions are clearly supported by the Department's 
regulations. CRTs and CRT glass are not specifically listed as 
hazardous materials in the Hazardous Materials Table. See 49 CFR 
172.101, Table. Although that Table does include listings for some 
specific lead compounds (e.g, lead azide, lead cyanide, and lead 
nitrate) and a generic listing for ``Lead compounds, soluble, n.o.s.,'' 
to our knowledge the lead in the CRTs and CRT glass is not in the form 
of any of the listed compounds and is not ``soluble'' in water. See 
Letter from Delmer F. Billings, Chief, Regulations Development, Office 
of Hazardous Materials Standards, DOT, to Ursula Judenhofer, BARLOCHER 
GmbH (August 8, 1997) (``DOT Lead Letter'') (``the term `soluble' as 
used in the HMR means soluble in water''), provided in Attachment 11. 
Moreover, the generic ``n.o.s.'' listing does not apply because CRTs 
and CRT glass do not meet the definition of Division 6.1 (poisonous) 
materials. See Letter from John A. Gale, Chief, Standards Development, 
Office of Hazardous Materials Standards, DOT, to James Bandstra, 
Environmental Manager, Hammond Group, Inc. (July 13, 2004) (``The 
shipping name `Lead compounds, soluble, n.o.s.' may not be used for a 
material that does not meet the criteria for a Division 6.1 material as 
specified in Sec.  173.132 of the HMR''), provided in Attachment 12. 
Indeed, the materials do not appear to meet the definition of any of 
the HMR hazard classes or divisions. See 49 CFR Part 173, Subparts C, 
D, and I.
    CRTs and CRT glass are not marine pollutants for much the same 
reason. See 49 CFR 172.101, Appendix B (List of Marine Pollutants) 
(listing several specific lead compounds and ``Lead compounds, soluble, 
n.o.s.''). In addition, these materials are not elevated temperature 
materials, because they are transported at ambient temperatures. See 49 
CFR 171.8 (elevated temperature materials are materials that are 
intentionally heated for transport and/or shipped at temperatures 
greater than 100 [deg]C (212 [deg]F)).
    The only remaining category of hazardous materials is ``hazardous 
substances,'' which are defined to include ``a[ny] material, including 
its mixtures and solutions that * * * [i]s listed in the appendix A to 
Sec.  172.101 [and] [i]s in a quantity, in one package, which equals or 
exceeds the reportable quantity (RQ) listed.'' See 49 CFR 171.8. The 
referenced appendix includes several specific lead compounds, none of 
which appear to be relevant. See 49 CFR 172.101, Appendix A, Table 1. 
It also includes a generic listing for ``lead,'' but states that 
``[t]he RQ * * * is limited to those pieces of the metal having a 
diameter smaller than 100 micrometers (0.004 inches).'' Id., note c. 
Because the lead in the CRTs and CRT glass is not generally present as 
``pieces of metal,'' much less pieces with such small diameters, the RQ 
for lead does not apply. Cf . DOT Lead Letter (applying only the RQs 
for specific lead compounds--not the RQ for lead--to a mixture of 
listed and unlisted lead compounds). Accordingly, the CRTs and CRT 
glass are not hazardous substances and are not hazardous materials 
(except in any instances where they might be hazardous wastes, as 
discussed above).

D. CRTs and CRT Glass That Are Not Hazardous Materials Are Not Subject 
to HMR Requirements

    The requirements of the HMR apply only to hazardous materials. See 
49 CFR 171.1(a) (stating that the ``[p]urpose and scope'' of the HMR is 
to prescribe requirements for transport of hazardous materials). 
Accordingly, to the extent that CRTs and CRT glass are not hazardous 
materials, as discussed above, they are not subject to the HMR.
    For example, such CRTs and CRT glass are not subject to shipping 
paper requirements under the HMR. See 49 CFR Part 172, Subpart C; 
Letter from John A. Gale, Transportation Regulations Specialist, Office 
of Hazardous Materials Standards, DOT, to Hobart Huson (January 23, 
2003) (``the shipping paper requirements in Part 172, Subpart C do not 
apply to a non-hazardous material. However, a shipping paper that 
describes both hazardous materials and non-hazardous materials must 
comply with Sec.  172.201(a)(1)''), provided in Attachment 13.\20\ In 
addition, CRTs and CRT glass are not subject to the labeling and 
marking requirements of the HMR. See 49 CFR Part 172, Subparts D and E. 
These materials also are not subject to the hazardous material release 
response requirements of the HMR. See, e.g., 49 CFR 171.15, 171.16; 49 
CFR Part 172, Subpart G.
---------------------------------------------------------------------------

    \20\ Even if CRTs and CRT glass could somehow be deemed 
hazardous materials for some reason other than by qualifying as 
hazardous wastes, they would not have to be accompanied by a 
shipping paper with any particular format, as long as the 
requirements of Part 172, Subpart Care satisfied. See Letter from 
Thomas G. Allan, Senior Transportation Regulations Specialist, 
Office of Hazardous Materials Standards, DOT, to Eugene J. Secor, 
EHS/Transportation Specialist, H.B. Fuller Automotive Company 
(August 14, 1998) (``The HMR do not specify a particular format for 
shipping papers''), provided in Attachment 14.
---------------------------------------------------------------------------

IV. Explanation of Why the State Regulations Are Preempted

    The reasons why the Maine rules for transport of CRTs and CRT glass 
are preempted vary somewhat from requirement to requirement. We first 
discuss two specific state requirements that are preempted because they 
are not ``substantively the same'' as the corresponding HMR 
requirements: (1) The requirements for Manifests or other specific 
shipping documents, and (2) the requirements for labeling and marking. 
We then explain more generally that the MDEP rules as a whole are 
preempted because they are based on a system of designating, 
describing, and classifying hazardous materials that is not 
substantively the same as the corresponding HMR system, and because 
they are an ``obstacle'' to the goals of the Federal hazmat law. 
Finally, we explain why the conclusion that the MDEP requirements are 
preempted is not in any way affected by the fact that certain portions 
of the Maine hazardous waste program have been ``authorized'' by EPA 
under another statute (i.e., RCRA).
    At the outset, it is worth noting that a senior DOT official, John 
A. Gale (currently the Chief of Standards Development in the DOT Office 
of Hazardous Materials Standards), previously considered the extent to 
which the federal rules for transport of CRTs and CRT glass preempt 
state requirements that differ. He concluded that ``[Federal hazmat 
law] preemption would apply in cases where a state has

[[Page 25089]]

not picked up the streamlined [federal] CRT system [i.e., the EPA 
exclusions for CRTs and CRT glass].'' See CRT Project Team Notes at 3 
(EPA summary of Mr. Gale's comments). For example, ``state laws 
requiring [a] manifest[] are not consistent with and would be preempted 
by DOT's federal rules not requiring * * * a manifest.'' Id. The 
discussion below is consistent with this earlier DOT assessment.\21\
---------------------------------------------------------------------------

    \21\ Some of the preemption issues addressed in this section of 
the Application are related to issues that EIA has indicated it may 
raise in a case that it filed in the U.S. Court of Appeals for the 
District of Columbia Circuit (``D.C. Circuit''). See Electronic 
Industries Alliance v. EPA, No. 06-1359 (D.C. Cir. filed October 25, 
2006) (challenging statements by EPA in its July 28, 2006 CR1 rule 
that CRTs meeting the conditions for exclusion from the federal 
definition of hazardous wastes must nevertheless be shipped as 
hazardous wastes to the extent that they are shipped from, to, or 
through states that have not adopted the conditional exclusion or 
similar provisions). In light of the filing of this Application, EIA 
is planning to ask the D.C. Circuit to place the litigation in 
abeyance.
---------------------------------------------------------------------------

A. The MDEP Shipping Paper Requirements Are Preempted Because They Are 
Not Substantively the Same as the HMR Requirements

    The Federal hazmat law provides that state requirements regarding 
shipping documents are preempted if they are not ``substantively the 
same'' as the corresponding requirements of the HMR. See 49 U.S.C. 
5125(b)(1)(C). DOT has clarified that, under this standard, state 
shipping document requirements must ``conform[] in every significant 
respect to the Federal requirement.'' See 49 CFR 107.202(d). As the 
Department has noted, ``the shipping paper requirements of the HMR are 
exclusive and * * * any additional [state] shipping paper requirements 
are inconsistent under the [Federal hazmat law].'' See 47 FR 51,991, 
51,994 (November 18, 1982), quoted in 67 FR 2948, 2950 (January 22, 
2002).\22\
---------------------------------------------------------------------------

    \22\ For these purposes, the term ``shipping documents'' is 
interpreted broadly to include any ``shipping order, bill of lading, 
manifest or other shipping document serving a similar purpose * * 
*.'' See 49 CFR 171.8 (definition of ``shipping paper''); Colorado 
Public Utilities Commission v. Harmon, 951 F.2d 1571, 1577 (10th 
Cir. 1991l) (``the terms `shipping document' and `shipping paper' 
are used interchangeably'').
---------------------------------------------------------------------------

    The MDEP requirements for manifesting broken CRTs and CRT glass 
(see Sections II.B.1 and II.C above) clearly are not ``substantively 
the same'' as the HMR requirements. As discussed above, the HMR does 
not require Manifests for these materials (assuming they are handled 
consistent with the requirements of EPA's conditional exclusions). See 
Sections III.A and III.B above. DOT has previously determined that 
where (as here) a state ``has extended the requirement to use a 
hazardous waste manifest * * * to materials that are not hazardous 
wastes,'' the state requirements are preempted. See 66 FR 37,260, 
37,265 (July 17, 2001) (DOT determination that local requirements 
mandating Manifests for medical wastes are preempted). In reaching this 
conclusion, the Department reasoned as follows:

    Because the HMR does not require the use of any specific form 
for shipments of * * * materials that are not hazardous wastes[ ], 
the requirement * * * that a uniform hazardous waste manifest be 
carried on any truck transporting [such materials] is not 
substantively the same as requirements in the HMR [and thus] is 
preempted.

    Id. Applying the same reasoning in the present case, it is clear 
that the Maine Regulations are preempted to the extent that they 
require Manifests for broken CRTs and CRT glass that are excluded from 
the federal Manifest requirement.
    The MDEP manifest requirements for broken CRTs and CRT glass are 
also preempted because such materials are not hazardous materials and 
thus are not subject to any shipping paper requirements under the HMR. 
See 49 CFR Part 172, Subpart C; Sections III.C and III.D above. 
Furthermore, even if the general HMR shipping paper requirements did 
somehow apply, they would not require the inclusion of many of the data 
elements that are included on the Manifest form which is required by 
MDEP (e.g., the name and address of the waste generator; the name of 
the transporter(s); waste codes and waste management codes; signatures 
of the transporter(s) and designated receiving facility; discrepancy 
indications; and generator's certifications regarding exports and waste 
minimization). Compare 40 CFR Part 262, Appendix (Manifest form) with 
49 CFR Part 172, Subpart C (HMR shipping paper requirements). As 
discussed in note 6 above, MDEP has also directed that persons using 
the Manifest form include ``item counts of the [CRT] waste * * * in 
Item 14 [of the Manifest].'' To the extent that this direction is meant 
to apply to shipments of broken CRTs or CRT glass, it would constitute 
yet another extra data element that would be preempted. Cf. 58 FR 
11,796, 11,182 (February 23, 1993) (DOT determination that certain 
Illinois requirements are preempted because they ``instruct the 
preparer of the * * * Manifest to enter the total quantity of each 
hazardous waste * * * in a different manner than the HMR'').
    The Maine rules requiring specific shipping documents (i.e., 
Manifests, UBOLs, or other MDEP-approved forms) for intact CRTs (see 
Section II.D. 1 above) likewise are not substantively the same as the 
HMR requirements. As noted above, intact CRTs that meet the 
requirements of EPA's conditional exclusions are not hazardous 
materials and thus are not subject to any shipping paper requirements 
under the HMR. See Sections III.C and III.D above. Moreover, even if 
the intact CRTs were somehow deemed to be hazardous materials, ``the 
HMR does not require the use of any specific form for shipments of * * 
* hazardous materials that are not hazardous wastes[ ].'' See 66 FR at 
37,265. Instead, the HMR simply identifies certain data elements that 
must be included on a shipping paper, without mandating a particular 
format. See generally 49 CFR Part 172, Subpart C. Because the Maine 
Regulations require intact CRTs to be transported with shipping papers 
and dictate shipping papers with a specific format, they are not 
substantively the same as the HMR and are preempted.
    Moreover, the UBOL form and instructions that are incorporated by 
reference into the Maine Regulations include a number of data elements 
that are not required in HMR shipping papers (e.g., the name, address, 
and phone number of the generator, carrier, and designated facility; 
waste codes; a count of the individual waste CRT items; signatures of 
the carrier and designated receiving facility; and a generator's 
certification that ``all parts of the hazardous materials [being 
shipped] including the * * * lead will be recycled''). See Me. Regs., 
ch. 857, Sec.  4 (incorporating the UBOL form and instructions by 
reference); Handbook, Appendix H (UBOL form); 49 CFR Part 172, Subpart 
C (HMR shipping paper requirements). Because the Maine Regulations 
include extra data elements that are not required under the HMR, the 
state rules are preempted. See, e.g. 69 FR 34,715, 34,719 (June 22, 
2004) (DOT determination that Massachusetts rules are preempted to the 
extent they require additional data elements on shipping papers for 
regulated medical wastes).
    When intact CRTs are shipped from a central accumulation facility 
to an instate consolidation facility, the Maine Regulations do allow 
more flexibility in the shipping papers. As noted in Section IID. 1 
above, such shipments do not require Manifests, UBOLs, or other MDEP-
approved documents, as long as they are accompanied by a log that 
contains certain specified data elements. See, e.g., Me. Regs., ch. 
857, Sec.  13(B). However, these logs qualify as shipping papers and 
are being required by MDEP, even though no shipping papers are required 
under the HMR. See Me. Regs.,

[[Page 25090]]

ch. 857, Sec.  13(B)(3) (``the log sheet [must] accompan[y] the 
universal waste to the instate consolidation facility'' (emphasis 
added)).
    Additionally, the data elements that must be included in a log go 
beyond what is required for a shipping paper under the HMR (e.g., the 
name, address and phone number of the CRT waste generator (or, if the 
CRT waste was generated by a household, a notation to that effect), and 
the date on which the waste was delivered to the facility). Compare Me. 
Regs., ch. 857, Sec.  13(B)(4) (required data elements) with 49 CFR 
Part 172, Subpart C. Because the Maine Regulations require shipments of 
intact CRTs from a central accumulation facility to an instate 
consolidation facility to be accompanied with shipping papers (i.e., 
logs) and require such shipping papers to include data elements that 
are not required under the HMR, they are preempted under the HMR. See, 
e.g, 69 FR at 34,719 (DOT determination that Massachusetts rules are 
preempted to the extent they require additional data elements on 
shipping papers for regulated medical wastes).\23\
---------------------------------------------------------------------------

    \23\ As discussed above, even though the Maine Regulations do 
not require use of a specific log form, MDEP has issued guidance 
stating that central accumulation facilities ``must'' use particular 
forms developed for this purpose. See note 15 above. To the extent 
that these forms are, in fact, intended to be mandatory, the 
requirement to use a specific form is once again preempted under the 
Federal hazmat law (as in the case of the UBOLs discussed above). 
Moreover, the log forms include still more data elements that are 
not required for HMR shipping papers and therefore are preempted 
under the Federal hazmat law (e.g., the name, location, and mailing 
address of the central accumulation facility, the job title of the 
contact person, a waste type code, a count of the individual CRT 
items, and an indication as to whether the CRTs are from computers 
or televisions). See Handbook at 25-28.
---------------------------------------------------------------------------

B. The MDEP Labeling and Marking Requirements Are Preempted Because 
They Are Not Substantively the Same as the HMR Requirements

    The Federal hazmat law provides that state requirements regarding 
labeling and marking of hazardous materials are preempted if they are 
not ``substantively the same'' as the corresponding requirements of the 
HMR. See 49 U.S.C. Sec.  5125(b)(1)(B). DOT has clarified that, under 
this standard, state labeling and marking requirements must ``conform[] 
in every significant respect to the Federal requirement.'' See 49 CFR 
Sec.  107.202(d).
    The MDEP requirements for labeling and marking of broken CRTs and 
CRT glass clearly are not ``substantively the same'' as the HMR 
requirements. As discussed in Sections II.B.2 and II.C above, the Maine 
Regulations require non-bulk containers of these materials to be marked 
with the words ``HAZARDOUS WASTE--Federal Law Prohibits Improper 
Disposal'' and related information (e.g., the name and address of the 
generator, the relevant Manifest number, and government contact 
information). See Me. Regs., ch. 851, Sec.  8(A)(4). However, the HMR 
does not require labeling/marking of these materials (assuming they are 
handled consistent with the requirements of EPA's conditional 
exclusions). See Section III.A and III.B above.
    The Maine rules for labeling and marking of intact CRTs likewise 
are not substantively the same as the HMR requirements. Under the 
state's universal waste rule, these CRTs must be marked during 
transportation with the words ``Waste Cathode Ray Tube.'' See Me. 
Regs., ch. 850, Sec.  3(A)(13)(e)(xxii)e; Section II.D.2 above. 
However, no such marking is required under the HMR. See Section III.C 
and III.D above. Indeed, the HMR does not impose any labeling/marking 
requirements on intact CRTs. Id.
    Because the MDEP rules for labeling/marking of broken CRTs, intact 
CRTs, and CRT glass differ from the HMR requirements, the state rules 
are preempted under the Federal hazmat law. See 69 FR at 34,718-19 (DOT 
determination that Massachusetts requirements for marking of ``sharps'' 
and other medical wastes were preempted because they were not 
substantively the same as the HMR requirements); 58 FR 48,936-37 (DOT 
determination that California requirements for marking certain 
containers of flammable or combustible liquids ``go[] beyond--and [are] 
not substantively the same as--the HMR [and therefore are] preempted by 
the [Federal hazmat law]'').

C. The MBEP Requirements in General Are Preempted Inasmuch As They Are 
Based on a System for Designating, Describing, and Classifying 
Hazardous Materials That Is Not Substantively the Same as the HMR 
System

    Under the Federal hazmat law, state requirements concerning ``the 
designation, description, and classification of hazardous material[s]'' 
are preempted if they are not ``substantively the same'' as the 
corresponding HMR requirements. See 49 U.S.C. 5125(b)(1)(A). DOT has 
clarified that, under this standard, state definitions must ``conform[ 
] in every significant respect to the Federal requirement.'' See 49 CFR 
107.202(d). According to the Department, ``non-Federal definitions and 
classifications that result in regulating the transportation * * * of 
more, fewer or different hazardous materials than the HMR * * * are 
preempted.'' See 65 FR 81,950, 81,953-54 (December 27, 2000) (DOT 
determination that definitions established by Broward County, Florida 
are preempted). Moreover, ``regulations that apply [a preempted] 
definition are preempted * * * to the extent that they relate to 
transportation.'' See 67 FR 35,193, 35,195 (May 17, 2002) (DOT decision 
on petition for reconsideration of the Broward County preemption 
determination).
    In the present case, the MDEP rules clearly employ different 
definitions than the HMR, which result in regulating the transportation 
of CRTs and CRT glass that are not regulated under the HMR. For 
example, the Maine definition of ``hazardous waste'' includes broken 
CRTs and CRT glass (see Section II.A above), even though such materials 
do not meet the HMR definition of ``hazardous waste'' because they are 
not ``subject to the Hazardous Waste Manifest Requirements of the U.S. 
Environmental Protection Agency specified in 40 CFR part 262.'' See 49 
CFR 171.8; Section III.A above. The broken CRTs and CRT glass also are 
not hazardous materials for any other reasons under the HMR. See 
Section III.C above. However, because the broken CRTs and CRT glass are 
classified as ``hazardous wastes'' under the Maine Regulations, they 
are subject to a wide range of state transportation requirements. See 
Sections II.B and II.C above.
    DOT has previously stated that where ``[a non-federal] definition 
of `hazardous waste' includes not only those materials regulated under 
the HMR but also other materials not regulated under the HMR * * * 
[the] definition is inconsistent with the HMR, and, therefore, 
preempted.'' See 55 FR 36,736, 36,743 (September 6, 1990). Thus, the 
Maine definition of ``hazardous waste'' is preempted. In addition, the 
state regulations that impose transportation requirements on broken 
CRTs and CRT glass based on the preempted definition are also 
preempted. The preempted requirements include, but are not limited to, 
those relating to manifesting, labeling/marking, emergency response 
plans, insurance, and transporter licensing. See Section II.B above 
(describing these and other Maine requirements for transport of broken 
CRTs and CRT glass).
    The Maine Regulations also classify intact CRTs as ``hazardous 
wastes,'' albeit a special subset of hazardous wastes eligible for 
management under reduced regulatory requirements (i.e., ``universal 
wastes''). See Section II.D above; Me. Regs., ch. 850,

[[Page 25091]]

Sec.  3(A)(13)(e)(ii), Note (indicating that hazardous wastes are 
subject to the full hazardous waste management rules, unless they 
qualify as universal wastes). Because intact CRTs are generally not 
federal hazardous wastes or hazardous materials, see Sections III.A and 
III.C above, the Maine definition of hazardous waste is once again 
preempted. In addition, the state transport rules for intact CRTs are 
preempted, including those for shipping papers, labeling/marking, 
emergency response plans, and insurance. See Section II.D above 
(describing these and other Maine requirements for transport of intact 
CRTs).
    Moreover, the Maine ``universal waste'' category itself is 
preempted under the Federal hazmat law. The MDEP regulations use this 
term, at least in part, to define the applicability of the state 
requirements for transportation (e.g., the state shipping paper 
requirements). See Section II.D above. Under the state rules, universal 
wastes include intact CRTs that are not HMR hazardous materials. See 
id. (intact CRTs are Maine universal wastes); Section III.C above 
(intact CRTs are generally not HMR hazardous materials). In this way, 
the Maine ``universal waste'' definition results in regulating the 
transportation of more materials than the HMR. Under such 
circumstances, the definition is preempted, as are all of the state 
transportation requirements for intact CRTs that are based on this 
definition. See, eg, 65 FR at 81,953-54.

D. The MDEP Requirements in General Are Preempted Inasmuch as They Are 
an Obstacle to the Goals of the Federal Hazmat Law

    The Federal hazmat law provides that state requirements are 
preempted if they are ``an obstacle to accomplishing and carrying out 
[the Federal hazmat law or] a regulation prescribed under [the HMR].'' 
See 49 U.S.C. 5125(a)(2). The key goals of the statute were to promote 
the flow of commerce, to minimize confusion, and to ensure 
transportation safety. See generally Colorado Pub. Util. Comm 'n, 951 
F.2d at 1580-81. Congress determined 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.'' See H.R. Rep. No. 
444 (Part 1), 101st Cong., 2d Sess., at 22 (1990). Thus, it made 
``uniformity * * * the linchpin in the design of the statute.'' See 951 
F.2d at 1575.
    In the present case, the Maine Regulations for transport of CRTs 
and CRT glass are clearly an obstacle to the goals of the Federal 
hazmat law. As an initial matter, as discussed above, the state 
requirements are substantively different from the HMR requirements with 
respect to at least three areas where uniformity is specifically 
mandated: (1) Shipping papers, (2) labeling/marking, and (3) the 
designation, description, and classification of hazardous materials. 
DOT has previously recognized that, in these areas, ``any substantive 
difference creates an `obstacle.' '' See 67 FR at 2,949; see also id. 
at 2,950 n.2 (discussing an earlier DOT inconsistency ruling that found 
that ``differing hazard class definitions and additional shipping paper 
requirements are preempted because they `are an obstacle to the 
accomplishment of the [Federal hazmat law] and its regulations' '').
    Accordingly, the MDEP rules at issue are an ``obstacle'' and are 
preempted.
    One way that the Maine Regulations serve as an obstacle is by 
creating substantial regulatory confusion. As Congress stressed when it 
expanded the Federal hazmat law preemption provisions in 1990, the 
existence of state regulations which vary from the federal regulations 
``confound[s] shippers and carriers which attempt to comply with 
multiple and conflicting * * * regulatory requirements.'' See Hazardous 
Materials Transportation Uniform Safety Act of 1990, Pub. L. 101-615 
Sec.  2, 104 Stat. 3244. In the present case, shippers and carriers 
will undoubtedly be confused when broken CRTs and CRT glass are 
classified and regulated during transportation as ``hazardous wastes'' 
by MDEP, but are not similarly classified or regulated by DOT.
    For example, although broken CRTs and CRT glass are not federal 
hazardous wastes or hazardous materials under the HMR, the Maine 
Regulations dictate that they be shipped with a ``Uniform Hazardous 
Waste Manifest,'' which refers to various federal hazardous waste rules 
and terms (e.g., ``Hazardous Waste Report Management Methods Codes,'' 
EPA Identification Numbers, and the hazardous waste minimization 
requirements of ``40 CFR 262.27(a)''), and requires ``Certification of 
receipt of hazardous materials.'' See Me. Regs., ch. 857 (state 
manifest requirements for ``hazardous wastes'' as defined by the Maine 
Regulations); 40 CFR Part 262, Appendix (Manifest form) (Item Nos. 1, 
5, 7, 8, 15, 19, and 20 (emphases added)). The Maine rules also require 
broken CRTs and CRT glass to be marked during transportation with the 
words ``HAZARDOUS WASTE'' and a reference to federal law. See Me. 
Regs., ch. 851, Sec.  8(A)(4). In addition, the rules prohibit 
generators from offering the materials to a transporter who is not 
licensed as a hazardous waste transporter. See Me. Regs., ch. 851, 
Sec.  7(A). A shipper need not undertake any of these activities to 
ship these materials under the HMR.
    Shippers and carriers also will be confused when intact CRTs are 
classified and regulated during transportation as ``universal wastes'' 
by MDEP, even though there is no similar DOT classification and no 
applicable requirements for the materials under the HMR. The MDEP rules 
for universal wastes are a particular source of confusion, given that 
they equate ``universal wastes'' to ``hazardous materials'' (i.e., the 
same term used to define the scope of the HMR). See, e.g., Me. Regs., 
ch. 850, Sec.  3(A)(13)(e)(iii) (requiring universal wastes to be 
shipped with a ``Recyclable Hazardous Material Uniform Bill of Lading'' 
if they are not shipped with a Manifest); Me. Regs., ch. 857, Sec.  4 
(incorporating the UBOL form by reference); Handbook, Appendix H (UBOL 
form), Title (``Maine Recyclable Hazardous Material''), Item 14 (``I 
certify that all parts of the hazardous materials referenced * * * will 
be recycled''); Item 18 (``Certification of receipt of hazardous 
materials'') (emphases added).
    The confusion will inevitably lead to regulatory non-compliance and 
increased risks to transportation safety. The problems will be 
magnified even further to the extent that other states might adopt 
their own independent regulatory requirements for CRTs and CRT glass. 
Moreover, these problems will go beyond the state shipping paper and 
labeling/marking requirements for CRTs and CRT glass. As noted above, 
all of the state requirements for CRTs and CRT glass are based on a 
system for designating, describing, and classifying hazardous materials 
that is substantively different from the DOT system and thus will 
confuse the regulated community. DOT has previously determined that 
many of the specific types of requirements imposed by MDEP create 
obstacles to the goals of the Federal hazmat law. For example, the 
Maine regulations require transporters of CRTs and CRT glass to have 
special insurance coverage and emergency response plans. See Sections 
II.B.3 and II.D.3 above. DOT has determined that these types of 
requirements create obstacles and therefore are preempted. See, e.g., 
Colorado Pub. Util. Comm 'n, 951 F.2d at 1581-82 (upholding DOT's 
determination that Colorado's insurance and clean-up plan requirements 
for radioactive materials are preempted, because ``additional 
documentation and

[[Page 25092]]

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' '').
    Finally, the Maine Regulations serve as an obstacle to the goals of 
the Federal hazmat law, inasmuch as they inhibit the free flow of 
commerce in CRTs for recycling. See H.R. Rep. No. 444 (Part 1), 101st 
Cong., 2d Sess., at 22 (1990) (discussing the need for uniformity ``in 
order to * * * encourage the free flow of commerce''). For example, at 
least one EIA member company that provides recycling services for used 
CRTs from businesses throughout the rest of the country has decided not 
to provide similar services for used CRTs generated in Maine, based in 
part on the added burdens imposed by the Maine regulations. Although 
some EIA members have extended their recycling programs for business-
generated CRTs to the State of Maine, in doing so they must either 
charge more for the recycling services to cover the costs of complying 
with the Maine rules or they must bear the increased transportation 
costs themselves. In either event, the higher costs interfere with the 
free flow of commerce and are likely to discourage the environmentally 
beneficial recycling of CRTs and CRT glass.

E. Preemption of the MDEP Requirements Is Not Affected By EPA's 
``Authorization'' of Portions of the Maine Regulations Under RCRA

    For all of the reasons discussed above, the MDEP rules for 
transport of CRTs and CRT glass are preempted under the Federal hazmat 
law. This conclusion is not in any way affected by the fact that some 
of the Maine Regulations have been ``authorized'' by EPA under RCRA. As 
discussed below, the specified Maine rules are not part of the state's 
authorized hazardous waste program. Moreover, even if the rules could 
somehow be deemed part of the EPA-authorized program, such 
authorization would not shield the rules from preemption under the 
Federal hazmat law.
1. The MDEP Rules for Transport of CRTs and CRT Glass Are Not Part of 
the State Hazardous Waste Program That Has Been Authorized by EPA
    Under RCRA, EPA can authorize individual states to implement 
portions of their hazardous waste programs in lieu of the corresponding 
parts of the federal RCRA program. See RCRA 3006(b), 42 U.S.C. 6926(b). 
Maine, like virtually all other states, has been authorized for a 
substantial part of its hazardous waste program. See, e.g., 69 FR 
64,861, 64,862 (November 9, 2004) (discussing the history of the 
authorized Maine program). However, the state rules for transport of 
CRTs and CRT glass are not part of the authorized program.
    The federal EPA regulations specify that ``[w]here an approved 
State program has a greater scope of coverage than required by Federal 
law, the additional coverage is not part of the Federally approved 
program.'' See 40 CFR 271.l(i)(2). In the present case, the Maine 
Regulations are broader in scope than the federal RCRA regulations. See 
69 FR at 64,864 (``There * * * are aspects of the Maine program which 
are broader in scope than the Federal program. The State requirements 
which are broader in scope are not considered to be part of the 
Federally enforceable RCRA program''). As discussed above, Maine 
generally regulates CRTs and CRT glass as hazardous wastes (either 
``ordinary'' hazardous wastes or ``universal'' hazardous wastes), while 
the federal regulations generally exclude CRTs and CRT glass from the 
definition of solid waste (and, therefore, from the definition of 
hazardous waste). See Sections II.A and III.A above. Because the state 
rules regulate CRTs and CRT glass that are not regulated at the federal 
level, the state rules for such materials--including the transport 
requirements for CRTs and CRT glass--are not part of the authorized 
state program.\24\
---------------------------------------------------------------------------

    \24\ See Memorandum from Lee M. Thomas, EPA Assistant 
Administrator for Solid Waste and Emergency Response, to EPA Program 
Implementation Guidance Addressees (May 21, 1984), provided in 
Attachment 15 (``To determine whether a particular requirement or 
provision of a State program is `broader in scope' (and therefore 
not a part of the authorized program) * * * the [key] question[ ] 
[is:] Does imposition of the State requirement increase the size of 
the regulated community beyond that of the Federal program? * * * 
Examples of requirements that are broader in scope include: * * * a 
lesser amount of waste exempted from regulation''); In re. Hardin 
County, Ohio, 5 E.A.D. 189, 202, RCRA (3008) Appeal No. 93-1 (April 
12, 1994), provided in Attachment 16 (dismissing an EPA enforcement 
action based on an Ohio rule that was found not to be part of the 
state's authorized RCRA program because ``the size of the regulated 
community under the Ohio * * * rule [was] larger than the size of 
the regulated community under * * * the federal hazardous waste 
program'').
---------------------------------------------------------------------------

2. The MDEP Rules Would Not Be Shielded From Preemption Under the 
Federal Hazmat Law, Even If They Were Deemed To Be Authorized Under 
RCRA
    Even if the Maine requirements for transport of CRTs and CRT glass 
could somehow be considered part of the state's authorized hazardous 
waste program, they would not be shielded from preemption under the 
Federal hazmat law. As DOT has long noted, ``[t]here is no basis for 
the position * * * that any State can avoid preemption of its hazardous 
waste transporter requirements simply by obtaining authorization under 
RCRA.'' See 60 FR 62,527, 62,534 (December 6, 1995). On the contrary, 
``EPA-authorized State requirements governing hazardous waste 
transporters that are more stringent than EPA's own regulations are 
preempted when those fail to meet the [preemption] standards of 49 
U.S.C. 5125.'' Id; see also 66 FR 37,260, 37,263 (July 17, 2001) 
(``RCRA and EPA's regulations do not authorize a State * * * to impose 
requirements on the transportation of hazardous waste that fail to 
satisfy the preemption criteria in 49 U.S.C. 5125).\25\ As discussed 
above, the MDEP rules for transport of CRTs and CRT glass do not meet 
the referenced Federal hazmat law standards. Therefore, the Maine rules 
are preempted.
---------------------------------------------------------------------------

    \25\ EPA likewise has expressly disavowed any possible 
implication that authorization of a state's hazardous waste program 
under RCRA might preclude preemption under the Federal hazmat law. 
According to the Agency, ``EPA does not believe that it is 
appropriate to use the RCRA Subtitle C authorization process to make 
specific determinations of possible preemption under the [Federal 
hazmat law] * * * [T]he RCRA authorization decisions provide no 
basis for shielding state regulations touching upon hazardous 
materials transport from possible preemption challenges under the 
[Federal hazmat law].'' See Letter from Michael Shapiro, Director, 
Office of Solid Waste, EPA, to Charles Dickhut, Chemical Waste 
Transportation Institute (August 17, 1994), provided in Attachment 
17; see also New York Department of Environmental Conservation v. 
DOT, 37 F. Supp. 2d. 152, 158 (N.D.N.Y. 1999) (``EPA clearly does 
not decide whether a preemption problem exists under the [Federal 
hazmat law] when considering an application for state authorization 
under RCRA. * * * In fact, * * * EPA refuses to consider any 
possible preemption under the [Federal hazmat law]'').
---------------------------------------------------------------------------

V. Interest of the Applicant

    EIA is a non-profit trade association consisting of both 
associations and individual companies in the electronics and ``high 
technology'' industries, including nearly 1,300 corporate members that 
provide products and services ranging from microscopic electronic 
components to state-of-the art defense, space and industrial systems, 
as well as the full range of information technology, telecommunications 
and consumer electronic products. EIA's mission includes ``addressing 
issues that are important to the [electronics] industry [and] 
mobilizing the industry on critical issues.'' EIA Bylaw I, provided in 
Attachment 18. The EIA Environmental Issues Council is specifically 
designed to address the electronics industry's environmental

[[Page 25093]]

and related regulatory concerns and to actively work to reduce the 
environmental impacts of the electronics industry's products throughout 
their entire life cycle, from design, through use, to end of life.
    The business of EIA member companies includes manufacturing, sale, 
and distribution of CRTs, use of CRTs, and collection and recycling of 
used CRTs and CRT glass. During the course of these operations, many 
EIA member companies transport used CRTs or CRT glass, offer such 
materials for transportation, and/or pay for such transportation by 
others. Such shipments frequently travel from, to, through, or within 
the State of Maine.
    Indeed, Maine law requires all manufacturers of computer monitors 
and televisions--most of which are EIA members--to have and implement a 
plan for the collection and recycling or reuse of the products that 
they manufactured and that have been generated as wastes by households 
within the state. See Me. Rev. Stat. Ann., tit. 38, Sec.  1610(6)(A) 
(Attachment 19); see also MDEP, ``Brands for which Manufacturers have 
Notified (listed by Brand)'' (April 13, 2007) (Attachment 20) 
(identifying manufacturers that have notified under the Maine law and 
the corresponding brand names). Manufacturers also are responsible for 
the ``costs associated with the handling, transportation and recycling 
of household-generated waste computer monitors and televisions that are 
or were produced by [them] and a pro rata share of orphan waste 
computer monitors and orphan waste televisions.'' See Me. Regs., ch. 
415, Sec.  2(C) (emphasis added) (Attachment 6); Me. Rev. Stat. Ann., 
tit. 38, Sec.  1610(5)(D) (Attachment 19); see also MDEP, 
``Manufacturer 2007 Pro Rata Share Responsibility for Orphan Waste for 
Maine Household Televisions [and] Computer Monitor Recycling Program'' 
(November 2006) (Attachment 21) (identifying the orphan waste shares 
for the affected manufacturers). Some EIA members also offer collection 
and recycling services for CRTs that are generated as wastes by 
businesses and/or other institutions in the state. In all cases, 
because there are no ultimate recycling facilities for CRTs in Maine, 
the CRTs must be transported to recycling facilities in other states.
    Under the MDEP requirements that are the subject of this 
Application, some or all of these shipments are subject to transport 
requirements that do not apply under the HMR. For example, MDEP 
requires such shipments to be accompanied by a Manifest, UBOL, or other 
MDEP-approved document, even though such documents generally are not 
required under the HMR. Similarly, MDEP requires specific labels and/or 
markings on the packages which are not required under the HMR. See 
Section II above (describing the Maine requirements for transport of 
CRTs and CRT glass); see also Me. Regs., ch. 415, Sec.  3(B)(l) 
(requiring all transport of household CRTs to be performed in 
accordance with the Maine universal waste requirements).
    The additional Maine requirements for transport of CRTs and CRT 
glass place unlawful and unnecessary burdens on those EIA members that 
transport (or offer for transport) such materials from, to, or through 
the State of Maine, or that pay for such services performed by others 
(as discussed above). To the extent that these EIA members are 
transporting the CRTs or CRT glass, or are offering such materials for 
transport, they will have the burden of complying with additional 
regulatory requirements in Maine. To the extent that these companies 
are paying for transportation-related services offered by others (as in 
the case of the manufacturers covered by the Maine law for collection 
and recycling of household CRTs), they will have to pay more for those 
services than would otherwise be required if the services could be 
provided in accordance with HMR requirements only.
    In at least one case, an EIA member that provides recycling 
services for used CRTs from businesses throughout the rest of the 
country has decided not to provide similar services for used CRTs 
generated in Maine, based in part on the added burdens imposed by the 
Maine regulations. In this way, the Maine regulations affect this 
company's efforts to build customer loyalty and increase customer 
satisfaction by offering nationwide recycling services. Moreover, the 
Maine rules are environmentally counterproductive, inasmuch as they 
discourage this company and others from providing CRT recycling 
services.
    A determination by DOT that the Maine requirements are preempted by 
the HMR would alleviate the burdens on EIA members and facilitate the 
environmentally sound recycling of CRTs. In addition, it would further 
the Federal hazmat law goals of promoting uniform requirements for a 
safe and efficient transportation system.
    Because EIA members are directly affected by the Maine Regulations 
addressed in this Application, and one of the Alliance's main purposes 
is to represent its members with respect to these types of issues, EIA 
has standing to submit this Application for a preemption determination. 
See 49 U.S.C. 5125(d); 58 FR at 11,181 (``The [Federal hazmat law] 
standing test is that a person be `directly affected' in order to apply 
for a preemption determination. * * * [DOT] interprets `directly 
affected' persons broadly because `important preemption issues [are 
raised] under the [Federal hazmat law], and all parties engaged in 
hazardous materials transportation or the regulation of that 
transportation will be served by [DOT's] addressing [preemption] 
issues.' ''); 60 FR at 62,532 (``[the `directly affected'] standard is 
a simple one; `being affected' means only that the [state] requirement 
applies to the applicant'').

VI. Conclusion

    For the reasons discussed above, EIA hereby requests that DOT issue 
a determination pursuant to 49 U.S.C. 5125(d)(1) and 49 CFR 107.203 
that the Maine Regulations codified at 06 096 Code Me. R. chs. 850-857 
and 415 are preempted by the Federal hazmat law and the HMR to the 
extent that they impose requirements on the transportation of CRTs and 
CRT glass that are not ``hazardous wastes'' under the HMR because they 
have been excluded from federal manifesting requirements by EPA. The 
specific Maine requirements that are covered by this request include, 
but are not limited to, the state requirements for Manifests and/or 
other shipping papers, labeling/marking, emergency response plans, 
insurance, and transporter licensing.

VII. Certificate of Service and Notification of Opportunity To Submit 
Comments

    I hereby certify, pursuant to 49 CFR Sec.  107.205(a), that copies 
of the foregoing application for a preemption determination were sent 
this 8th day of May 2007 by certified mail, return receipt requested, 
to the following, together with a statement that comments regarding the 
application may be submitted to the Chief Counsel of the Pipeline and 
Hazardous Materials Safety Administration within the U.S. Department of 
Transportation:

Gov. John E. Baldacci, Office of the Governor, 1 State House Station, 
Augusta, ME 04333-0001.
David P. Littell, Commissioner Maine Department of Environmental 
Protection, 17 State House Station, Augusta, ME 04333-0017.
Steven Rowe, Attorney General, 6 State House Station, Augusta, ME 
04333-0006.
Jeffrey Pidot, Office of the Attorney General, Chief, Natural Resources 
Division, 6 State House Station, Augusta, ME 04333-0006.

[[Page 25094]]

Aaron H. Goldberg, Beveridge & Diamond, P.C., Counsel to Applicant, 
Electronic Industries Alliance.

Table of Attachments

    1. Summary of Key Maine Requirements That Are Preempted and the 
Basis for Preemption.
    2. Me. Regs., ch. 850 (Identification of Hazardous Wastes).
    3. Me. Regs., ch. 851 (Standards for Generators of Hazardous Waste)
    4. Me. Regs., ch. 853 (Licensing of Transporters of Hazardous 
Waste)
    5. Me. Regs., ch. 857 (Hazardous Waste Manifest Requirements)
    6. Me. Regs., ch. 415 (Reasonable Costs for Handling and Recycling 
of Electronic Wastes).
    7. MDEP, ``Guidance for the New Uniform Hazardous Waste Manifest.''
    8. MDEP, ``Universal Waste Handbook'' (March 2007).
    9. Letter from Charles E. Betts, Senior Transportation Specialist, 
Office of Hazardous Materials Standards, DOT, to Phil Stewart, The Dow 
Chemical Company (April 21, 2006).
    10. EPA, ``Notes from 4/24/98 CRT Project Team Conference Call on 
Transportation Packaging Issue'' (April 28, 1998).
    11. Letter from Delmer F. Billings, Chief, Regulations Development, 
Office of Hazardous Materials Standards, DOT, to Ursula Judenhofer, 
BARLOCHER GmbH (August 8, 1997).
    12. Letter from John A. Gale, Chief, Standards Development, Office 
of Hazardous Materials Standards, DOT, to James Bandstra, Environmental 
Manager, Hammond Group, Inc. (July 13, 2004).
    13. John A. Gale, Transportation Regulations Specialist, Office of 
Hazardous Materials Standards, DOT, to Hobart Huson (January 23, 2003).
    14. Letter from Thomas O. Allan, Senior Transportation Regulations 
Specialist, Office of Hazardous Materials Standards, DOT, to Eugene J. 
Secor, EHS/Transportation Specialist, H.B. Fuller Automotive Company 
(August 14, 1998).
    15. Memorandum from Lee M. Thomas, EPA Assistant Administrator for 
Solid Waste and Emergency Response, to EPA Program Implementation 
Guidance Addressees (May 21, 1984).
    16. In re: Hardin County, Ohio, 5 E.A.D. 189, 202, RCRA (3008) 
Appeal No. 93-1 (April 12, 1994).
    17. Letter from Michael Shapiro, Director, Office of Solid Waste, 
EPA, to Charles Dickhut, Chemical Waste Transportation Institute 
(August 17, 1994).
    18. Electronic Industries Alliance, Bylaw I.
    19. Me. Rev. Stat. Ann., tit. 38, Sec.  1610.
    20. MDEP, ``Brands for which Manufacturers have Notified (listed by 
Brand)'' (April 13, 2007).
    21. MDEP, ``Manufacturer 2007 Pro Rata Share Responsibility for 
Orphan Waste for Maine Household Televisions [and] Computer Monitor 
Recycling Program'' (November 2006).

                Summary of Key Maine Requirements That Are Preempted and the Basis for Preemption
----------------------------------------------------------------------------------------------------------------
                                        Broken CRTs/CRT glass         Intact CRTs          Basis for preemption
----------------------------------------------------------------------------------------------------------------
Shipping Papers......................  Manifest required. (Me.  Manifest, Uniform Bill    Not
                                        Regs., ch. 857).         of Lading, or Log        substantively the same
                                                                 accompanying the         as the HMR.
                                                                 waste. (Me. Regs., ch.   Based on
                                                                 857, Sec.   6(B)).       classification that is
                                                                                          not the same as in the
                                                                                          HMR.
                                                                                          Obstacle to
                                                                                          goals to Federal
                                                                                          hazmat law.
Labeling/Marking.....................  ``Hazardous Waste'' and  ``Waste Cathode Ray       Not
                                        other information.       Tube'' (Me. Regs., ch.   substantively the same
                                        (Me. Regs., ch. 851,     850, Sec.                as the HMR.
                                        Sec.   8(A)(4)).         3(A)(13)(e)(xxii)e).     Based on
                                                                                          classification that is
                                                                                          not the same as in the
                                                                                          HMR.
Classification.......................  Hazardous waste (Me.     ``Universal'' hazardous   Not
                                        Regs., ch. 850, Sec.     waste. (Me. Regs., ch.   substantively the same
                                        3(A)).                   850, Sec.                as the HMR.
                                                                 3(AX13Xb)(i)).           Obstacle to
                                                                                          goals of Federal
                                                                                          hazmat law.
Insurance............................  At least $500,000 in     At least $1,000,000 in    Based on
                                        coverage. (Me. Regs.,    coverage. (Me. Regs.,    classification that is
                                        ch. 853, Sec.  Sec.      ch. 853, Sec.   11(H)).  not the same as in the
                                        5(B)(9) and 8(B)).                                HMR.
                                                                                          Obstacle to
                                                                                          goals of Federal
                                                                                          hazmat law.
Emergency Response Plan..............  Must have plan and keep  Must have plan and keep   Based on
                                        copy on each truck.      copy on each truck.      classification that is
                                        (Me. Regs., ch. 853,     (Me. Regs., ch. 853,     not the same as in the
                                        Sec.   8(F)).            Sec.   11(K)).           HMR.
                                                                                          Obstacle to
                                                                                          goals of Federal
                                                                                          hazmat law.
Transporter Licensing................  License required. (Me.   N/A....................   Based on
                                        Regs., ch. 853, Sec.                              classification that is
                                        4(A)(1)).                                         not the same as in the
                                                                                          HMR.
                                                                                          Obstacle to
                                                                                          goals of Federal
                                                                                          hazmat law.
Other Transporter Requirements.......  (Me. Regs., ch. 853)...  (Me. Regs., ch. 853,      Based on
                                                                 Sec.   10-11).           classification that is
                                                                                          not the same as in the
                                                                                          HMR.
                                                                                          Obstacle to
                                                                                          goals of Federal
                                                                                          hazmat law.
----------------------------------------------------------------------------------------------------------------

[FR Doc. E8-9524 Filed 5-5-08; 8:45 am]

BILLING CODE 4910-60-M
