
[Federal Register: September 10, 2009 (Volume 74, Number 174)]
[Notices]               
[Page 46644-46654]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se09-113]                         

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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: Notice of administrative determination of preemption.

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    Local Laws Affected: Title 06-096, Maine Code of Regulations (MCR) 
Chapters 850, 851, 853 & 857 (For convenience, provisions in Title 06-
096 MCR are referred to herein simply by the Chapter and section 
number, e.g., ``MCR 850 section 3(A)'').
    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180. Resource Conservation and 
Recovery Act (RCRA), 42 U.S.C. 6901 et seq., and 40 CFR Chapter I, 
subchapter I (Solid Wastes).
    Modes Affected: Highway.
SUMMARY: Federal hazardous material transportation law does not preempt 
MDEP's regulations on classification of used cathode ray tubes 
(``CRTs'') as ``universal waste'' and broken CRTs and glass removed 
from CRTs (``CRT glass'') as a State ``hazardous waste'' and the 
marking, labeling, shipping documentation, and transporter 
requirements, because these requirements do not apply or pertain to 
materials regulated under Federal hazardous materials transportation 
law and the HMR or otherwise constitute an obstacle to accomplishing 
and carrying out Federal hazardous materials transportation law and the 
regulations issued under that law.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of Chief 
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001 (Tel. No. 202-366-4400).

[[Page 46645]]


SUPPLEMENTARY INFORMATION:

I Background

A. Application

    In this determination, PHMSA considers whether the Federal 
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts 
the following requirements of the Maine Department of Environmental 
Protection (``MDEP'') relating to CRTs and broken CRTs and CRT glass 
destined for reuse, repair, or recycling (as those requirements are 
presently applied):\1\
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    \1\ In June 2008, MDEP added or revised ``notes'' to its 
regulations and revised guidance materials to advise that (1) it had 
revised its Recyclable Material Uniform Bill of Lading form to 
delete the word ``Hazardous'' from the title of the form; (2) the 
shipping document should clearly indicate whether the ``particular 
material is regulated by DOT'' and suggested describing CRTs as 
``Non-DOT regulated material (CRT) for recycle as universal waste''; 
and (3) the marking specified in 40 CFR 262.32 (``HAZARDOUS WASTE--
Federal Law Prohibits Improper Disposal'') did not apply to ``State-
only hazardous wastes [that] are not DOT regulated hazardous 
materials.'' See the Notes to MCR 851 sections 8(A)(4), 853 section 
11(Q), and 857 sections 4, 6.
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    (1) ``Whole, intact, and unbroken'' CRTs are classified as 
``universal waste'' in MCR 850 section 3(A)(13)(b)(i) \2\ and, for 
transportation of intact CRTs:
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    \2\ According to MDEP, ``CRTs are primarily treated as universal 
waste'' and ``nearly all CRTs leave the State as universal waste'' 
under the guidance set forth in MDEP's Universal Waste Handbook that 
``[i]ncidental breakage of ten (10) or fewer * * * CRTs may still be 
handled as universal waste.''
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    (a) The generator must prepare and a transporter must carry one of 
the following documents: (i) A ``hazardous waste manifest''; (ii) the 
``Maine Recyclable Material Uniform Bill of Lading''; or (iii) ``a log 
system of tracking'' shipments to a central accumulation facility 
within Maine from an instate small universal waste generator, or to a 
consolidation facility within Maine from an instate small universal 
waste generator or central accumulation facility. MCR 857 sections 4-8 
& 13 (as amended effective June 12, 2008).
    (b) The generator must mark and label each package with the words 
``Waste Cathode Ray Tubes.'' MCR 850 section 3(A)(13)(e)(xxii)(e).
    (c) The transporter must meet certain conditions (in order to be 
exempt from obtaining a license) including maintaining (i) at least 
$1,000,000 in liability insurance, and (ii) ``a plan for the cleanup of 
discharges'' in the possession of the vehicle operator. MCR 853 
sections 10, 11(H) & (K).
    (2) Broken CRTs and CRT glass are classified as a State ``hazardous 
waste,'' in MCR 850 section 3(A) and, for transportation of broken CRTs 
and CRT glass:
    (a) The generator must prepare and the transporter must carry a 
``hazardous waste manifest.'' MCR 857 sections 4-8.
    (b) The generator must mark and label each transportation package 
``in accordance with the applicable Federal Department of 
Transportation regulations on hazardous materials under 49 CFR Part 
172'' and also mark ``each container of 110 gallons or less'' with the 
following:

    State Hazardous Waste--State Law Prohibits Improper Disposal. If 
found, contact the nearest police or public safety authority or the 
Maine Department of Environmental Protection (1-800-482-0777).

Generator's Name & Address---------------------------------------------

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Manifest Document Number-----------------------------------------------

    MCR 851 Sec.  8(A) (as amended effective June 12, 2008).

    (c) The transporter must obtain a license from MDEP and meet 
additional conditions including maintaining (i) at least $500,000 in 
liability insurance, and (ii) ``a plan for the cleanup of discharges'' 
in the possession of the vehicle operator. MCR 853 sections 4(A)(1), 
5(B)(9), 8(B) & (F).
    In its application for an administrative preemption determination, 
the Electronic Industries Alliance (Alliance) contends that MDEP's 
classification, shipping paper, and marking or labeling requirements 
are not ``substantively the same as'' requirements in the HMR, and that 
both these requirements and the additional requirements on transporters 
``cause confusion, interfere with the flow of trade, and otherwise 
serve as an obstacle to the purposes of the Federal hazmat law.''
    On May 6, 2008, PHMSA published a notice in the Federal Register 
inviting interested persons to submit comments on the Alliance's 
application. 73 FR 25079. In response to this notice, comments were 
submitted by MDEP, environmental agencies of eight States (Connecticut, 
Illinois, Maryland, Massachusetts, New Hampshire, North Carolina, South 
Carolina, and Washington), the New Hampshire Attorney General, the 
Association of State and Territorial Solid Waste Management Officials 
(ASTSWMO), Ecomaine, the Electronics TakeBack Coalition, the Maine Pulp 
and Paper Association (MPPA), the Natural Resources Council of Maine, 
and the Utility Solid Waste Activities Group (USWAG). The Alliance and 
MDEP submitted rebuttal comments.

B. Federal Regulation of CRTs and CRT Glass

    A CRT is ``a vacuum tube, composed primarily of glass, which is the 
visual or video display component of an electronic device.'' 40 CFR 
260.10. Examples are televisions, computer monitors, medical, 
automotive, and oscilloscope devices. CRTs are built of a specialized 
glass that often contains lead. Under regulations of the U.S. 
Environmental Protection Agency (EPA), solid waste containing lead is 
considered toxic if ``the extract from a representative sample of the 
waste'' contains greater than 5 mg lead per liter, ``using the Toxicity 
Characteristic Leaching Procedure, test Method 1311 in `Test Methods 
for Evaluating Solid Waste, Physical/Chemical Methods,' EPA Publication 
SW-846.'' 40 CFR 261.24.
    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)).'' EPA Notice of Proposed Rulemaking (NPRM), ``Modification 
of the Hazardous Waste Program; Cathode Ray Tubes,'' 67 FR 40508, 40510 
(June 12, 2002). A note to MCR 850 section 3(A)(13)(a)(ii) states that, 
according to information in a 1996 Tufts University masters thesis, 
``CRTs are believed to represent 75% of the lead in the solid waste 
stream. Lead, which is used to shield harmful radiation in the CRT, 
comprises more than 10 percent of a CRT's mass.''
    Until recently, some used CRTs were potentially subject to 
regulation as EPA hazardous wastes unless covered by the exclusions for 
household waste and conditionally exempt small quantity generators (a 
person who generates less than 100 kg of non ``acute'' hazardous waste 
in a calendar month). See 40 CFR 261.4(b)(1), 261.5, as discussed at 67 
FR at 40511 and in EPA's final rule, 71 FR 42928, 42929 (July 28, 
2006). Accordingly, used CRTs not covered by the exclusions for 
household waste and conditionally exempt small quantity generators 
might be subject to regulation in transportation as a hazardous 
material because they were a hazardous waste ``subject to the Hazardous 
Waste Manifest Requirements of the U.S. Environmental Protection Agency 
specified in 40 CFR part 262.'' See 49

[[Page 46646]]

CFR 171.8 (definitions of ``hazardous material'' and ``hazardous 
waste'').
    However, in its July 28, 2006 final rule, which became effective 
January 29, 2007, EPA addressed the ``mounting volumes of outdated 
computer and electronics equipment'' and the concern that there has 
been ``a barrier to CRT recycling created by some existing hazardous 
waste management regulations.'' 71 FR at 42931. First, EPA explained in 
the preamble to that final rule that its hazardous waste management 
regulations, including the Uniform Hazardous Waste Manifest 
requirements in 40 CFR part 262, do not apply to unused CRTs, because 
``EPA does not regulate unused chemical products that are reclaimed,'' 
and that the existing exemptions from Federal hazardous waste 
management requirements for household waste and small quantity 
generators remained applicable. 71 FR at 42929.
    Second, EPA adopted a ``conditional exclusion'' from its waste 
management regulations for the following categories of CRTs and CRT 
glass because they are not ``solid wastes'': \3\
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    \3\ This exclusion does not apply to CRT materials that are sent 
for disposal or that are speculatively accumulated. 40 CFR 
261.1(c)(8). Additional notification and consent requirements apply 
when used, intact CRTs or broken CRTs are exported for reuse or 
recycling. 40 CFR 261.39(a)(5), 261.40, 261.41. See 71 FR at 42948-
49.
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    (a) Used intact CRTs sent for recycling (40 CFR 261.4(a)(22)(i));
    (b) Broken CRTs sent for recycling that are transported in a 
container (including a vehicle) constructed, filled, and closed to 
minimize releases of CRT glass to the environment and 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)). See 71 FR at 42929, 42948.
    (c) 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)). 
See 71 FR at 42829, 42948.
    Accordingly, since January 29, 2007, used CRTs, broken CRTs, and 
CRT glass that are not subject to EPA's hazardous waste management 
regulations, including the Uniform Hazardous Waste Manifest 
requirements in 40 CFR part 262, are not hazardous materials for 
purposes of the HMR. As the Alliance notes, these items are not 
hazardous substances, marine pollutants, elevated temperature 
materials, designated as hazardous in the Hazardous Materials Table (49 
CFR 172.101), or materials that meet ``the defining criteria for hazard 
classes'' in the HMR. See 49 CFR 171.8 (definition of a ``hazardous 
material'').\4\ The primary risk during transportation of used CRTs 
appears to be ``the risk of injury to personnel [from] breakage of the 
items,'' according to an exchange of emails among MDEP staff, provided 
with MPPA's comments.
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    \4\ USWAG also states that the HMR do not classify the lead in 
CRTs as a hazardous material but notes that the HMR do ``classify 
several other forms of lead as hazardous materials including 
specific lead compounds (e.g., lead azide, lead cyanide and lead 
nitrate), other lead compounds when soluble in water, and lead 
having a diameter less than 100 micrometers. See 49 CFR 172.101 
Table & Appendix A, Table 1.''
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C. Related Proceedings

    The Alliance participated in EPA's CRT rulemaking. In its comments 
on the June 12, 2002 NPRM (which have been placed in the public docket 
of this preemption determination), the Alliance endorsed and proposed 
expanding ``the proposed conditional exclusions for'' used CRTs, broken 
CRTs, and CRT glass. Under the heading ``Transportation Issues,'' the 
Alliance stated that it:

believes that the benefits of the proposed rules for * * * CRTs * * 
* can be enhanced significantly by noting that, once finalized, they 
will preempt more stringent state rules regarding transportation of 
these items. Although the RCRA regulatory scheme generally allows 
state programs to be more stringent than the federal program, EPA 
and the courts have long recognized that there is an exception in 
the case of transportation-related requirements (e.g., manifesting, 
packaging, labeling, and transportation registration requirements), 
unless preemption is explicitly waived by the federal government. In 
the present case, preemption would be an important step forward in 
ensuring uniform nationwide rules that could facilitate development 
of a recycling infrastructure.

    In the preamble to the July 28, 2006 final rule, EPA stated that 
``authorized states'' which ``administer and enforce a hazardous waste 
program within the state in lieu of the federal program'' under 42 
U.S.C. 6926 ``are not required to adopt federal regulations * * * that 
are considered less stringent than previous federal regulations.'' 71 
FR at 42943. 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 42944. EPA discussed scenarios 
``when used CRTs or processed CRT glass [are] transported to and from 
states with different regulations governing these wastes'' and stated 
that, ``for the portion of the trip through * * * 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. In a separate 
document in the public docket responding to comments, EPA stated that 
issues of preemption of state transportation requirements were outside 
the scope of the EPA rulemaking.
    On October 25, 2006, the Alliance 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 (which has been placed in the 
public docket), the Alliance stated that the issues to be raised in the 
judicial review proceeding 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 petition for review 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.

II. Federal Preemption

    PHMSA's May 6, 2008 notice discussed the express preemption 
provisions in 49 U.S.C. 5125 that are relevant to this proceeding. 73 
FR at 25081-82. 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--in the absence of a waiver of preemption by DOT under 
Sec.  5125(e) or specific authorization in another Federal law--a 
requirement of a State, political subdivision of a State, or Indian 
tribe is preempted if

    (1) complying with a requirement of the State, political 
subdivision, or tribe and a requirement of this chapter, 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

[[Page 46647]]

issued by the Secretary of Homeland Security.

    These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that PHMSA had applied in issuing inconsistency 
rulings (IRs) prior to 1990, under the original preemption provision in 
the Hazardous Materials Transportation Act (HMTA). Public Law 93-633 
section 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).
    In addition, subsection (b)(1) of 49 U.S.C. 5125, as slightly 
revised in 2005,\5\ provides that 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 the Secretary of Homeland Security:
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    \5\ These revisions are contained in 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), Public 
Law 109-59, 119 Stat. 1891 (Aug. 10, 2005).

    (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 of a 
package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material.

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).
    The 2002 and 2005 amendments to 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 that:

    (3) many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) in order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L. 101-615 section 2, 104 Stat. 3244. A United States Court of 
Appeals has found that 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 that concern highway routing (which have been delegated to 
FMCSA). 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. A short period of time is allowed for filing 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). For purposes of determining whether there is 
preemption under Federal hazardous material transportation law, 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)), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693 
(May 22, 2009)). Section 4(a) of Executive Order 13132 authorizes 
preemption of State laws only when a statute contains an express 
preemption provision, there is other clear evidence that Congress 
intended to preempt State law, or the exercise of State authority 
directly conflicts with the exercise of Federal authority. The 
President's May 20, 2009 memorandum sets forth the policy ``that 
preemption of State law by executive departments and agencies should be 
undertaken only with full consideration of the legitimate prerogatives 
of the States and with a sufficient legal basis for preemption.'' 
Section 5125 contains express preemption provisions, which PHMSA has 
implemented through its regulations and which PHMSA applies in making 
administrative preemption determinations.

IV. Standing of the Alliance To Apply for a Preemption Determination

    At the time of its May 8, 2007 application, the Alliance was ``a 
non-

[[Page 46648]]

profit trade association consisting of both associations and individual 
companies in the electronics and `high technology' industries.'' It 
stated that the activities of its ``member companies include[d] 
manufacturing, sale, and distribution of CRTs, use of CRTs, and 
collection and recycling of used CRTs and CRT glass,'' and that its 
Environmental Issues Council ``is specifically designed to address the 
electronics industry's environmental and related regulatory concerns 
and to actively work to reduce the environmental impacts of the 
electronic industry's products through their entire life cycle, from 
design, through use, to end of life.''
    According to its comments, MDEP performed ``background research'' 
which indicates that the Alliance is now ``a very different 
organization than the one which existed at the time of [its] 
application.'' In response to MDEP's request ``for an explanation,'' 
the Alliance wrote PHMSA on May 19, 2008, to advise that it had 
``undergone a realignment'' so that ``under the current structure, 
EIA's only direct members are the four constituent trade associations; 
through its representation of them, EIA continues to represent the 
interests of member companies of the associations on relevant issues, 
such as the Maine CRT transport rules.'' The Alliance also stated that 
its Environmental Issues Council had been dissolved, but asserted that 
it ``continues to be involved in environmental issues (e.g., those 
raised by the Maine rule requiring used CRTs to be transported as 
hazardous wastes), as necessary and appropriate to represent the four 
constituent trade associations and their members.''
    MDEP argues that the Alliance's application should be dismissed on 
the grounds that (1) the Alliance failed to identify any specific 
members directly affected the MDEP requirements it challenges, and (2) 
following the Alliance's ``realignment,'' its only members are trade 
associations. The Alliance replies that MDEP ``does not actually 
dispute that EIA represents the interests of electronic companies that 
are directly affected by the Maine rules for CRT transport'' and the 
``Maine `takeback' program for CRTs [which] explicitly requires 
manufacturers to transport, and/or pay for transport of the CRTs they 
produced (when they reach the end of life) as well as a pro rata share 
of `orphan' CRTs.''
    To the extent that 49 U.S.C. 5125(d)(1) contains a ``standing'' 
requirement for applying for a preemption determination, PHMSA has 
interpreted that requirement broadly and found that an industry 
association may raise issues of preemption when the association's 
members are ``directly affected'' by a non-Federal requirement. PD-
6(R), ``Michigan Marking Requirements for Vehicles Transporting 
Hazardous and Liquid Industrial Wastes,'' 59 FR 6186, 6189 (Feb. 9, 
1994). PHMSA has also noted the ``all parties engaged in hazardous 
materials transportation or the regulation of that transportation will 
be served by [PHMSA] addressing [preemption] issues.'' PD-2(R), 
``Illinois Environmental Protection Agency's Uniform Hazardous Waste 
Manifest,'' 58 FR 11176, 11181 (Feb. 23, 1993), quoting from IR-32, 
``City of Montevallo, Alabama Ordinance on Hazardous Waste 
Transportation,'' 55 FR 36736, 36741 (Sept. 6, 1990). Accordingly, when 
an administrative proceeding has been initiated in response to a proper 
application, PHMSA has declined to terminate the proceeding because of 
a change in circumstances. In PD-25(R), ``Missouri Prohibition against 
Recontainerization of Hazardous Waste at a Transfer Facility,'' 66 FR 
37089, 37090 (July 16, 2001), the applicant for a preemption 
determination purported to ``withdraw'' its application, but PHMSA 
stated that it

believes that the value in deciding whether a non-Federal 
requirement is inconsistent with (or preempted by) Federal hazardous 
material transportation law ``goes beyond the resolution of an 
individual controversy. At a time when hazardous materials 
transportation is receiving a great deal of public attention, the 
forum provides [PHMSA] an opportunity to express its views on the 
proper role of State and local vis-a-vis Federal regulatory activity 
in this area.'' IR-2, Rhode Island Rules and Regulations Governing 
the Transportation of Liquefied Natural Gas, etc., decision on 
appeal, 45 FR 71881, 71882 (Oct. 30, 1980).

    This same important purpose exists when State or local requirements 
apply to individual companies that are members of one or more 
associations that, in turn, belong to an overall association. In actual 
practice, an industry association is just as ``directly affected'' by a 
State or local requirement on its ``second-level'' members, and DOT has 
not hesitated to consider issues of preemption raised in those 
circumstances. See, most recently, PD-31(F), ``District of Columbia 
Requirements for Routing of Certain Hazardous Materials,'' 71 FR 18137 
(April 10, 2006); and Docket No. FMCSA-2008-0204 [PDA-33(F)], ``City of 
Boston's Hazardous Materials Routing Designation,'' 73 FR 46349 (Aug. 
8, 2008), 51335 (Sept. 2, 2008). For purposes of this administrative 
proceeding, PHMSA finds that the Alliance had ``standing'' to submit 
its May 8, 2007 application for a determination whether Federal 
hazardous material transportation law preempts the MDEP requirements on 
used CRT's and CRT glass, and it did not lose that standing because of 
its ``realignment'' following submission of its application.

V. Requirements on ``State-Only'' Waste

    The ultimate question to be decided in this proceeding is the 
extent to which Federal hazardous material transportation law precludes 
a State from imposing transportation-related requirements on materials 
that are regulated as ``hazardous waste'' by a State, but not regulated 
as ``hazardous materials'' under the HMR. This requires consideration 
of the statutory and regulatory differences (and overlaps) between (a) 
hazardous materials, as defined in Federal hazardous material 
transportation law and designated in the HMR, because they pose ``risks 
to life, property and the environment * * * in transportation * * * in 
intrastate, interstate, and foreign commerce,'' 49 U.S.C. 5101, and (b) 
hazardous wastes, to which RCRA and EPA's regulations apply, which pose 
a ``present and future threat to human health and the environment'' 
when disposed. 42 U.S.C. 6902(b).

A. Application and Comments in Support of Preemption

    In its application, the Alliance repeatedly emphasizes that CRTs 
and CRT glass destined for reuse or recycling are not ``hazardous 
materials'' for purposes of the HMR. From this predicate, it argues 
that State or local requirements that apply to more or different 
materials than covered by the HMR are preempted. It quotes from PD-
18(R), ``Broward County, Florida's Requirements on the Transportation 
of Certain Hazardous Materials,'' 65 FR 81950, 81953-54 (Dec. 27, 
2000), that ``non-Federal definitions and classifications that result 
in regulating the transportation * * * of more, fewer or different 
hazardous materials than the HMR * * * are preempted''; and IR-32, 55 
FR at 36743, that a non-Federal ``definition of `hazardous waste' that 
includes not only those materials regulated under the HMR but also 
other materials not regulated under the HMR * * * is inconsistent with 
the HMR, and, therefore, preempted.''
    The Alliance argues that MDEP may not impose any requirement for 
shipping documentation with respect to materials that ``are not subject 
to any shipping paper requirements under the

[[Page 46649]]

HMR.'' It asserts that ``state requirements regarding shipping 
documents are preempted if they are not `substantively the same' as the 
corresponding requirements in the HMR'' and that, ``under this 
standard, state shipping documents must `conform[] in every significant 
respect to the Federal requirement. See 49 CFR 107.202(d).'' The 
Alliance points out that the MDEP requirements for a manifest, bill of 
lading, or log ``include a number of data elements that are not 
required in HMR shipping papers.'' It refers to prior determinations in 
which PHMSA has found that:

--``the shipping paper requirements of the HMR are exclusive and * * * 
any additional [state] shipping paper requirements are inconsistent 
under the [Federal hazmat law],'' IR-5, ``City of New York 
Administrative Code Governing Definition of Certain Hazardous 
Materials,'' 47 FR 51991, 51994 (Nov. 18, 1982);
--state requirements are preempted which ``instruct the preparer of the 
* * * Manifest to enter the total quantity of each hazardous waste * * 
* in a different manner than the HMR,'' PD-2(R), 58 FR at 11182;
--state requirements ``to use a hazardous waste manifest [for] 
materials that are not hazardous wastes'' are preempted, PD-23(RF), 
``Morrisville, PA Requirements for Transportation of `Dangerous Waste,' 
'' 66 FR 37260, 37265 (July 17, 2001); and
--a state may not require additional information to be included on the 
manifest, PD-29(R), ``Massachusetts Requirements on the Storage and 
Disposal of Infectious or Physically Dangerous Medical or Biological 
Waste,'' 69 FR 34715, 34719 (June 22, 2004).

    In its responsive comments, the Alliance states that the 
alternative to use a bill of lading, log, or other form approved by 
MDEP for intact CRTs is ``nothing but an illusion,'' and MDEP is able 
to track shipments without requiring ``that certain information and 
shipping papers accompany CRT shipments, when there is no such 
requirement under federal law.'' It asserts that, with respect to 
broken CRTs and CRT glass, ``[t]he question at issue is not whether a 
state may allow state-regulated wastes to be included on a manifest 
[or] how such state-regulated wastes should be indicated on the 
manifest,'' but rather, ``whether MDEP has the authority to require use 
of a uniform hazardous waste manifest for non-HMR materials.'' The 
Alliance quotes from PHMSA's determination in PD-23(RF), that 
``additional requirements by States (or localities) for the use of a 
specific form beyond what is required in Federal regulations create a 
`substantial burden for both generator and transporters.' '' 66 FR at 
37265.
    The Alliance asserts that the MDEP marking and labeling 
requirements are preempted because ``the HMR does not impose any 
labeling/marking requirements on intact CRTs,'' or on broken CRTs and 
CRT glass ``assuming they are handled consistent with the requirements 
of EPA's conditional exclusions.'' And it states that MDEP may not call 
broken CRTs or CRT glass ``hazardous waste,'' or intact CRTs 
``universal waste'' (a ``special subset of hazardous wastes eligible 
for management under reduced regulatory requirements''), because these 
``materials do not meet the HMR definition of `hazardous waste.' ''
    The Alliance disputes MDEP's ``claim that its `labeling and marking 
requirements primarily apply to the Maine generator, not to the 
transporter, and thus are not a transportation issue.'' It compares the 
MDEP marking and labeling requirements to the requirements for marking 
``liquid industrial waste'' and ``hazardous waste'' that PHMSA found to 
be preempted in PD-6(R). It contends that the ``newly established 
label,'' which omits any reference to Federal law, ``still does not 
save the state marking/labeling requirements from preemption'' because 
these requirements ``are still substantively different than federal 
marking/labeling requirements.''
    The Alliance further contends that all the MDEP requirements 
``serve as an obstacle'' to accomplishing and carrying out the Federal 
hazardous materials transportation law and the HMR ``by creating 
substantial regulatory confusion'' and ``inhibit[ing] the free flow of 
commerce in CRTs for recycling.'' It states that ``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, it attributes confusion to MDEP's requirements that 
broken CRTs and CRT glass (1) must be ``shipped with a `Uniform 
Hazardous Waste Manifest,' which * * * requires a `Certification of 
receipt of hazardous materials' ''; (2) ``must be marked during 
transportation with the words `HAZARDOUS WASTE' and a reference to 
federal law''; and (3) may not be offered ``to a transporter who is not 
licensed as a hazardous waste transporter.'' The Alliance states that 
``the added burdens imposed by the Maine regulations'' are a factor 
that led one of its members to refuse to provide recycling ``services 
for used CRTs generated in Maine.''
    The Alliance also states that differences between the MDEP 
requirements and those in different States illustrate the ``substantial 
confusion'' when shipments travel through more than one State. It also 
argues that a finding of preemption would not ``undermine'' the ability 
of States ``to regulate hazardous wastes that are not regulated by EPA, 
to streamline requirements for wastes that have not been designated as 
federal universal wastes, and to develop collection and recycling 
programs for CRTs and other electronic wastes.''
    Two other industry associations, MPPA and USWAG, submitted comments 
in agreement with the Alliance's position that Federal hazardous 
material transportation law preempts the MDEP requirements on CRTs and 
CRT glass. MPPA states that ``its member mills regularly generate CRTs 
and arrange for reuse, recycling, or disposal of CRTs, using 
transporters, and * * * [u]nder some circumstances, MPPA members also 
transport used and unused CRTs.'' MPPA represents that, in regulating 
intact CRTs as ``universal waste,'' MDEP has gone

beyond the federal Universal Waste rules and indeed beyond its own 
hazardous waste rules in several regards, including transportation 
requirements. * * * Among the requirements which are ``broader in 
scope'' than federal Universal Waste regulations are the DEP rules 
covering employee training, weekly inspections, storage and aisle 
space, shipment tracking documents, the Maine ``Uniform Hazardous 
Materials Bill of Lading,'' and Universal Waste transporter 
operating standards. Maine requires that all used, unused, or 
unwanted CRTS generated and shipped from Maine facilities ultimately 
be transported to a recycling facility, whether they are intact or 
broken. MPPA believes that the DEP attempted in some cases to 
address the overlap of the HMR and its new scheme, but the DEP 
adopted an overbroad approach that ultimately conflicts with and 
frustrates a uniform HMR transportation program.

    MPPA attributes ``confusion that the regulated public faces when 
attempting to wrestle with the DEP's transportation requirements'' to 
the differences ``from the federal HMR regulations and EPA's 
regulations.'' It states that this results from Maine's failure to 
adopt ``the EPA's conditional exclusion for Universal Wastes,'' Maine's 
classification of broken CRTs and CRT glass as fully regulated State 
``hazardous wastes,'' rather than universal wastes, and the ``alternate 
shipping paper'' requirements for intact CRTs. MPPA emphasizes that, 
``to the extent that MPPA or its members

[[Page 46650]]

do not understand the requirements, that underscores the confusion 
generated by these different requirements.'' It attached to its 
comments an email exchange among MDEP staff during 2003 considering, 
but not deciding in the absence of any proposal ``submitted for review 
and approval,'' whether shrink wrapping CRTs for shipment would be 
acceptable, and states that ``some individuals and companies no longer 
transport Universal Waste due to an inability or unwillingness to meet 
the additional requirements adopted by the DEP.'' MPPA also states that 
it ``believes that the Maine Universal Waste rules, and the 
transportation rules in particular, provide a `De Facto' scheme that 
regulates Universal Waste as it if were hazardous material under the 
HMR.''
    MPPA states that its ``members are also subject to enforcement 
action by the DEP, which has a vigorous enforcement program including 
notices of violation and regular assessment of penalties for violations 
of the DEP hazardous waste regulations.'' While MPPA ``is not aware of 
enforcement actions taken against its members as transporters or 
shippers of CRTs,'' it refers to ``DEP enforcement action on [other] 
Universal Wastes,'' and states it has ``no doubt that DEP would enforce 
its Universal Waste rules on CRTs if it learned of violations.''
    USWAG (an intervenor in the litigation pending in the Court of 
Appeals for review of EPA's July 28, 2006 final rule) states that 
``preemption of Maine's CRT regulations [is] both necessary and 
critical to ensuring national uniformity in transportation safety.'' It 
asserts that a finding that State requirements are not preempted 
because they affect the transportation of ``materials that are not 
regulated by the HMR/HMTA (i.e., lead in CRTs and CRT glass)'' would 
``ignore[] the HMTA statutory scheme whereby DOT is provided with the 
authority for designating `hazardous materials.' '' USWAG further 
contends that

    If DOT's preemption authority is limited to those substances 
that it has determined pose unreasonable risks, it allows for the 
development of non-federal transportation standards for all other 
substances rather than a uniform national set of transportation 
safety regulations. DOT's conclusions on substances that it 
determines do not pose an unreasonable risk are rendered meaningless 
if states can expand this list on their own. Congress' intent will 
be frustrated if every state (and even every locality) may 
promulgate transportation standards for any substance in various 
amounts and forms provided the state's list does not explicitly 
overlap with DOT-regulated hazardous materials.

    USWAG states that ``[a]ll of Maine's particular transportation 
requirements should be preempted because the state has used a 
classification system for the materials to be regulated that is 
inconsistent with the HMR.'' It also refers to PHMSA's prior findings 
of preemption in cases including:

--PD-23(RF), when a state had ``create[d] a scheme for designating and 
classifying hazardous material that is not substantively the same as in 
the HMR'' (66 FR at 38624);
--PD-6(R), where the ``liquid industrial waste'' marking was 
``tantamount to the creation of an additional class of hazardous 
materials with its own marking requirements'' (59 FR at 6192); and
--IR-32, in which PHMSA referred to the statements in prior decisions 
``that it considers the Federal rule in definition of hazard classes to 
be exclusive'' (55 FR at 36742).

B. Comments in Opposition to Preemption

    MDEP agrees with the Alliance that, following EPA's CRT rulemaking, 
intact and broken CRTs destined for recycling are not a ``hazardous 
material.'' It emphasizes that it ``regulates CRTs and CRT glass as a 
state-only waste,'' and it does not attempt ``to regulate CRTs as 
federal hazardous material.'' It states that both ``DOT and EPA have 
agreed that States have the right to regulate state-only waste, and 
EIA's assertions to the contrary are baffling.'' MDEP quotes from 
Massachusetts v. U.S. Department of Transportation, 93 F.3d 890, 894 
(D.C. Cir. 1996), that ``the regulation of how waste may be picked up 
or dropped off in a state must be thought an area of traditional state 
control.'' It also refers to PHMSA's 1996 letter (discussed in the May 
6, 2008 Federal Register notice, 73 FR at 25083) that waste regulated 
by the State of Utah, which is not subject to the HMR, may be described 
on the manifest as ``Utah Regulated Only,'' ``non-RCRA waste,'' ``Utah 
only waste,'' or ``Utah Hazardous waste, liquid or solid, n.o.s.''
    MDEP states that it has been authorized by EPA ``to implement the 
RCRA hazardous waste program,'' and that, in 2004,

EPA determined that MDEP's inclusion of CRTs in the State's 
universal waste rule was different from, but equivalent to the 
Federal regulations. 69 FR at 64864. Both EPA and MDEP's universal 
waste rules established streamlined hazardous waste management 
regulations which were intended to encourage the recycling of 
certain widely generated wastes. * * * EPA's recent adoption of the 
final CRT rule in July 2006 changed the federal CRT requirements but 
reconfirmed MDEP authority, and even specifically addressed how 
interstate-transportation of state-only regulated materials through 
States adopting EPA's new conditional exclusion should be handled. 
71 FR 42927, 42944. DOT preemption was clearly not contemplated by 
EPA.

    MDEP also argues that its requirements for ``tracking of state-only 
hazardous waste, whether broken CRTs as hazardous waste or intact CRTs 
as universal waste, do not create a new classification of federal 
hazardous materials.'' In its rebuttal comments, it states that, ``to 
preclude any suggestion or misimpression that MDEP has ever attempted, 
or is presently attempting, to create a de facto DOT hazardous 
materials classification of this portion of its state-only hazardous 
waste program, MDEP has recently provided new clarifications and 
guidance in a number of its materials--e.g., its website, its 
regulations, and its forms.'' It emphasizes that, ``even prior to such 
guidance, transporters have understood that, in Maine, broken CRTs, 
similar to other state-only hazardous wastes, are part of the MDEP's 
state-only hazardous waste program, and may not be identified or 
treated as DOT hazardous materials unless they are defined as such by 
DOT.''
    MDEP notes that it has excluded the word ``hazardous'' from the 
``Maine Recyclable Material Uniform Bill of Lading'' form. It states 
that the alternative tracking documents allowed ``to be utilized for 
universal wastes * * * make even clearer than before that Maine is not 
attempting to regulate CRTs as federal hazardous materials.''
    MDEP contends that its ``labeling and marking requirements apply to 
the Maine generator, not to the transporter, and thus are not a 
transportation issue'' because they concern ``non-transportation 
operations at fixed facilities.'' It also states that ``under both 
federal and MDEP universal waste rules the word `waste' may be placed 
on a package and under both federal and MDEP rules this syntax does not 
mean that it is a DOT hazardous material.'' It asserts that its marking 
and labeling requirements do not create confusion because there is no 
indication that either intact or broken CRTs are federal hazardous 
materials, stating ``the MDEP approach to state-only universal waste is 
the antithesis of confusing; rather, in conformance with the practices 
nationwide for the movement of universal wastes, it carefully 
delineates a bright line between DOT hazardous materials and universal 
wastes, including state-only universal waste.''
    MDEP argues that its requirements on transporters of intact or 
broken CRTs are

[[Page 46651]]

not obstacles to the goals of Federal hazardous material transportation 
law or the HMR because ``Maine has not in any way made a de facto 
classification of CRTs as federal hazardous material.'' It states that 
the Alliance's arguments about possible confusion, hypothetical 
noncompliance, and risks to transportation safety are ``unsubstantiated 
and fl[y] in the face of the reality of years of successful state and 
federal co-operation with state-only hazardous waste programs, 
including universal waste.''
    MDEP states that the preemption determination cases cited by the 
Alliance and USWAG ``fall into four general fact patterns.'' The first 
is that in PD-7(R) in which PHMSA found that: ``Operator requirements 
for the transport of oils that are not hazardous materials are not 
subject to preemption by the HMTA.'' 59 FR at 28914. According to MDEP, 
``operation of the MDEP program'' resembles the circumstances 
considered in PD-7(R), where an extensive analysis was not required in 
that determination (as USWAG argues), ``because Maryland's definitions 
of covered oils were, as here, sufficiently transparent to prevent 
anyone from incorrectly believing that the vegetable oils were DOT 
hazardous materials.''
    MDEP distinguishes the second fact pattern of PD-6(R) on the ground 
that there is nothing in the MDEP marking or labeling requirements 
comparable to the Michigan requirement which was ``sufficiently similar 
to HMR markings that it appears to be a hazard warning, but that does 
not conform to HMR markings, [so that] the purposes of the HMR are 
undermined.''
    MDEP states the third and fourth fact patterns involve ``cases 
where the challenged non-Federal requirements contained language that 
effectively blurred the definition of items on DOT's designated 
hazardous materials list'' with items regulated under the non-Federal 
requirements or ``a non-Federal requirement'' was applied to the same 
material ``in a different manner,'' including:

--the definitions of gases ``under pressure'' and gases and mixtures 
considered ``combustible'' or ``flammable,'' IR-5, 47 FR at 51993;
--``a system of classifying hazardous materials which is totally at 
variance with the system of hazard class definitions on which the 
Federal hazardous materials regulatory system is based,'' IR-6, ``City 
of Covington Ordinance Governing Transportation of Hazardous 
Materials,'' 48 FR 760, 763 (Jan. 6, 1983);
--the definition of ``radioactive materials,'' IR-12, ``St. Lawrence 
County, New York; Local Law Regulating the Transportation of 
Radioactive Materials,'' 49 FR 46632, 46651 (Nov. 27, 1984);
--State Police regulations which include ``materials listed in the SARA 
[Title III] table which are not listed in the HMR Table'' but omit some 
``materials listed in the HMR Table but not in the SARA Table'' IR-29, 
``State of Maine Statutes and Regulations on Transportation of 
Hazardous Materials,'' 55 FR 9304, 9308;
--a local definition of ``hazardous waste'' as including ``radioactive 
waste'' with a lower threshold of activity than subject to the HMR as a 
``hazardous material,'' IR-32, 55 FR at 36742;
--the definitions of ``hazardous materials,'' ``combustible liquid,'' 
``flammable liquid,'' ``biomedical waste,'' ``discarded hazardous 
materials,'' and ``sludge'' which were being ``used to regulate a 
material as a hazardous material,'' but ``were not `substantively the 
same as' their counterparts in the HMR or did not have counterparts in 
the HMR,'' PD-18(R), 67 FR at 35195;
--the definitions of ``infectious waste,'' ``hospital waste,'' and 
``dangerous waste'' that ``create a scheme for designating and 
classifying hazardous material'' that is not substantively the same as 
the regulation of ``regulated medical waste'' as a hazardous material 
in the HMR, PD-23 (RF), 66 FR at 37264; and
--``extensive [additional] information and documentation requirements 
[for the transportation of nuclear materials] * * * are likely to 
confound the transporters of hazardous materials, thereby increasing 
the potential for unreasonable hazards throughout the county,'' 
Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1583.

    Eight States, ASTSWMO, Ecomaine, and the Natural Resources Council 
of Maine submitted comments opposing the Alliance's application. The 
Connecticut Department of Environmental Protection, Illinois 
Environmental Protection Agency, Maryland Department of the 
Environment, New Hampshire Department of Environmental Services, South 
Carolina Department of Health and Environmental Control, the Washington 
Department of Ecology, and ASTSWMO all quote the finding in PD-7(R) 
that wastes that are ``not hazardous materials are not subject to 
preemption by the HMTA.'' 59 FR at 28914.
    These eight states assert that finding that the MDEP requirements 
are preempted would essentially prevent states from developing state-
only regulated wastes or managing state-only universal waste in 
accordance with their universal waste requirements. Most of them 
specifically mention that this result would be directly contrary to 
EPA's March 4, 2005 final rule (70 FR 10789) revising requirements for 
the Uniform Hazardous Waste Manifest, ``which clearly provides for 
states to include state only wastes and additional state waste codes 
(to convey specific state information) providing it does not duplicate 
information contained in federal codes.''
    Five of these states assert that ``the existence of state only 
hazardous waste has not caused substantial problems or confusion.'' 
They allege that the Alliance ``is targeting Maine CRT requirements'' 
because ``Maine has one of the first in the nation manufacturer 
takeback programs for electronic waste, specifically CRTs. * * * Other 
states are looking at developing similar programs'' which should ``not 
be thwarted by a DOT preemption determination.''
    The New Hampshire Attorney General's Office submitted a separate 
comment that there is a ``presumption against preemption in areas of 
traditional state control, including the regulation of waste and 
environmental protection'' and, unless the ``dual compliance'' and 
``obstacle'' criteria in 49 U.S.C. 5125 apply, ``a state requirement is 
not preempted merely because the federal scheme has left a substance 
unregulated in certain respects.''
    ASTSWMO states that a finding that the MDEP requirements on intact 
and broken CRTs are preempted would (1) ``undermine long established 
legal authorities for States to regulate additional wastes as hazardous 
beyond those regulated by the U.S. Environmental Protection Agency 
(EPA) under federal hazardous waste regulations''; (2) ``contradict 
explicit authority granted to the states by EPA to include additional 
wastes in the category of `universal waste' under State regulations''; 
and (3) ``hinder States' abilities to tailor their regulations to local 
problems and conditions.'' ASTSWMO asserts that, ``when EPA modifies 
the federal hazardous waste regulatory program to make it less 
stringent, States are not required to adopt the changes,'' as discussed 
in EPA's July 28, 2007 final rule (71 FR at 42944). The fact that 
``States may regulate additional categories of wastes as State-only 
universal waste * * *

[[Page 46652]]

provid[es] further evidence that variation among the States' universal 
waste programs is to be expected,'' which ASTSWMO finds expressed in 
the preamble to EPA's ``Universal Waste Rule.'' 60 FR 25492 (May 11, 
1995).
    Ecomaine is ``a quasi-municipal organization owned by 21 
municipalities in southern Maine, encompassing a waste-to-energy 
renewable power plant, single-sort recycling center and an ashfill/
landfill.'' It states that ``Maine's eWaste Law'' requires ``that CRTs 
be recycled'' rather than being disposed at landfills and waste 
facilities and that MDEP's ``efficient and desirable tracking system * 
* * is crucial to the effectiveness of their program.'' Ecomaine says 
it ``shares the strategy that manufacturers take responsibility for 
their products,'' and states that the Alliance's application for a 
preemption determination ``seems counterproductive toward a sustainable 
future.''
    The Electronics TakeBack Coalition is ``a national coalition of 
environmental and consumer groups, who promote green design and 
responsible recycling of electronics in the U.S.'' It states that the 
Alliance's application ``is simply a ploy to undermine recently enacted 
state e-waste recycling legislation that requires EIA's (former) 
members to participate in the electronics recycling program.'' It 
compares the MDEP requirements with ``the California e-waste law, which 
also places several restrictions on the handling and transportation of 
CRTs in California,'' and notes that the Alliance has not challenged 
the California law which ``does not require the industry to take any 
responsibility for recycling.'' It states that ``Maine does not 
regulate or classify these as hazardous materials, as claimed in the 
EIA petition,'' and is acting within its authority to designate ``state 
only hazardous wastes'' and ``universal wastes.''
    The Natural Resources Council of Maine, the ``largest environmental 
advocacy group'' in Maine, states that a finding of preemption ``would 
eviscerate a highly successful law that is helping to protect Maine's 
citizens and wildlife from the toxic materials in electronic waste.'' 
It cites the ``accomplishments'' of Maine's ``electronic waste law'' 
and states that Maine's regulation of intact CRTs and CRT glass is 
fully authorized under EPA's CRT regulation and the guidance in EPA's 
universal waste program.

C. Decision

    Ever since enactment of RCRA in 1976, the year following the HMTA, 
DOT and EPA have worked together to coordinate their respective 
requirements on the transportation of hazardous waste and to reconcile:
--the authority in 42 U.S.C. 6926 for a State to ``administer and 
enforce a hazardous waste * * * program'' that is ``equivalent to the 
Federal program under'' RCRA;
--the authority recognized by EPA and DOT for a State program to 
include in its hazardous waste management program additional wastes 
which are not regulated by EPA, under the provision in 42 U.S.C. 6929 
that nothing in RCRA ``shall be construed to prohibit any State or 
political subdivision thereof from imposing any requirements * * * 
which are more stringent than'' EPA's hazardous waste management 
regulations;
--the requirement in 42 U.S.C. 6923(b) that, with respect to ``any 
hazardous waste identified or listed'' by EPA that is subject to 
Federal hazardous materials transportation law, ``the regulations 
promulgated by [EPA] shall be consistent with the requirements of such 
Act and the regulations thereunder''; and
--the original provision in Section 112 of the HMTA that, unless a 
waiver of preemption is granted, ``any requirement of a State or 
political subdivision thereof, which is inconsistent with any 
requirements set forth in this title, or in a regulation issued under 
this title, is preempted.''
    In May 1980, when DOT adopted its initial regulations on the 
transportation of hazardous waste materials, it noted that ``six EPA-
DOT joint public hearings were held in various parts of the United 
States'' and that PHMSA's predecessor agency (the Materials 
Transportation Bureau [MTB]) ``worked closely with EPA in the joint 
development of appropriate transportation requirements.'' 45 FR 34560, 
34566, 34567 (May 22, 1980). ``MTB explained that the primary focus of 
its requirements was to ensure that hazardous wastes are properly 
identified to carriers and that they are delivered to predetermined 
designated facilities. Proper identification of wastes is essential in 
order to implement the transportation aspects of a `cradle to grave' 
hazardous waste tracking system.'' 45 FR at 34567.
    Accordingly, the scope of ``hazardous waste'' covered by the HMR is 
limited to ``any material that is subject to the hazardous waste 
manifest requirements of the EPA specified in 40 CFR Part 262.'' 49 CFR 
171.8.\6\ PHMSA's May 22, 1980 final rule also added a new Section 
171.3(c) which specifically stated that a State or local requirement 
that applied to a ``hazardous waste subject to this subchapter'' 
(emphasis added) was preempted if it ``applies differently or in 
addition to the requirements in [the HMR] concerning:
---------------------------------------------------------------------------

    \6\ As originally adopted in 1980, the definition of ``hazardous 
waste'' included any material that would be subject to EPA's 
hazardous waste manifest requirements ``absent an interim 
authorization to a state under 40 CFR Part 123, Subpart F.'' 45 FR 
at 34587. This additional language was deleted in PHMSA's February 
18, 1986 final rule, 51 FR 5968, because it was ``no longer 
necessary due to the change in the applicability of the HMR for 
hazardous wastes adopted in the final rule under HM-145D (49 FR 
10507, Mar. 20, 1984).'' 50 FR 288, 290 (Jan. 3, 1985).
---------------------------------------------------------------------------

    ``(1) Packaging, marking, labeling, or placarding; \7\
---------------------------------------------------------------------------

    \7\ In its separate final rule adopting a hazardous waste 
manifest system (45 FR 12737, 12740 [Feb. 26, 1980]), EPA stated 
that
    DOT's labeling, marking, and placarding requirements have been 
in use for several years [and are] widely understood by persons in 
the transportation industry and by State and local officials in 
charge of responding to discharges of hazardous materials. 
Therefore, in developing its regulatory system for transporters of 
hazardous waste, EPA decided to rely upon DOT's existing system to 
the fullest extent possible consistent with [RCRA's] statutory 
mandate to protect human health and the environment during the 
transportation of hazardous waste. This effort to coordinate the 
transportation regulations was facilitated by DOT's proposal to 
extend the applicability of its hazardous materials regulations to 
transporters of hazardous waste. Upon adoption of DOT's regulations, 
these two sets of regulations will be fully interlocked, and a 
transporter of hazardous waste will be required to comply with both 
DOT and EPA regulations.
    EPA's requirements to package, label, mark, and placard 
shipments of hazardous waste are set forth at 40 CFR 262.30-262.33.
---------------------------------------------------------------------------

    ``(2) Format or contents of discharge reports (except immediate 
reports for emergency response); \8\ and
---------------------------------------------------------------------------

    \8\ EPA also adopted at 40 CFR 263.30, ``the DOT requirements 
for reporting of discharges,'' and provided at 49 CFR 263.31 that a 
``transporter must clean up any hazardous waste discharge that 
occurs during transportation or take such action as may be required 
or approved by Federal, State, or local officials so that the 
hazardous waste discharge no longer presents a hazard to human 
health or the environment.'' 45 FR at 12744, 33152.
---------------------------------------------------------------------------

    ``(3) Format or contents of shipping papers, including hazardous 
waste manifests.'' Id.\9\
---------------------------------------------------------------------------

    \9\ Four years later, EPA and DOT issued coordinated final rules 
adopting a uniform hazardous waste manifest (see 49 FR 10490 (EPA); 
49 FR at 10510 (DOT) [Mar. 20, 1984]). EPA explained that it and DOT 
``modified the Uniform Manifest form to allow the entry of certain 
optional State information items in addition to the federally-
regulated items,'' and specifically 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,'' so long as there is a clear distinction ``between 
federally-regulated wastes and other wastes, as required by DOT 
regulations (49 CFR 172.201(a)(1)).'' 49 FR at 10492, 10495. DOT 
similarly noted that the amendments adopted by it and EPA did not 
``prohibit States from requiring additional information from the 
generator or the treatment, storage or disposal facility concerning 
a hazardous waste shipment,'' but that this information could be 
submitted ``directly to the appropriate agency of that State.'' 49 
FR 10508. Thus, ``while these amendments do not prohibit the 
transporter from voluntarily carrying such information, they do 
preclude States from requiring the transporter from doing so.'' Id. 
See also 40 CFR 271.10.

---------------------------------------------------------------------------

[[Page 46653]]

    This provision, specific to hazardous waste, was consistent with 
PHMSA's original regulations which set forth procedures for ``a State 
or a political subdivision of a State having a requirement pertaining 
to the transportation of hazardous materials or any person affected by 
the requirement [to] obtain an administrative ruling as to whether the 
requirement is inconsistent with the [Hazardous Materials 
Transportation] Act or regulations issued under the Act.'' Former 49 
CFR 107.201(a), adopted at 41 FR 38167, 38171 (Sept. 9, 1976) (emphasis 
supplied). Accordingly, both the general and specific preemption 
provisions in PHMSA's regulations were clear that non-Federal 
requirements that do not ``pertain'' to the transportation of a 
hazardous material subject to the HMTA are not preempted by the HMTA.
    As discussed in Part II, above, the HMTA was amended in 1990 to (1) 
specifically set forth the ``dual compliance'' and ``obstacle'' 
standards that PHMSA had applied in issuing administrative rulings on 
preemption prior to that date; (2) specify that non-Federal 
requirements in five ``covered subject'' areas must be ``substantively 
the same as'' requirements in the Federal hazardous material 
transportation law and the regulations issued under that law; and (3) 
statutorily authorize PHMSA's administrative process for making 
preemption determinations. Public Law 101-615 section 105(a)(4), 104 
Stat. 3247 (Nov. 16, 1990). Thereafter, PHMSA revised its procedural 
regulations in subpart C of 49 CFR part 107 (56 FR 8616, 8622 [Feb. 28, 
1991]), and deleted former Sec.  171.3(c) as part of the President's 
Regulatory Reinvention Initiative to eliminate unnecessary provisions 
because, ``for preemption purposes, [PHMSA] looks as hazardous waste 
issues together with issues covering all other hazardous materials. 
RCRA's directive that EPA's hazardous waste requirements be consistent 
with the Federal hazmat law does not mandate that [PHMSA] establish a 
separate preemption provision for hazardous waste.'' 61 FR 21084, 21093 
(May 9, 1996). See also 61 FR 51235, 51236 (Oct. 1, 1996), that 
``utilization of the `covered subjects' preemption authority in the 
Federal hazardous materials transportation law facilitates 
harmonization of non-Federal requirements with Federal law'' and ``goes 
far beyond the limited provisions of 49 CFR 171.3(c). * * * [T]he 
preemption provisions of the Federal hazardous materials transportation 
law address all issues pertaining to transportation of hazardous 
materials, including hazardous waste.''
    These amendments to the HMTA and revisions to PHMSA's regulations 
have not changed the general principle, as expressed in the preamble to 
a final rule on ``Infectious Substances,'' 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.'' 
60 FR 48780, 48784 (Sept. 20, 1995). As PHMSA explained at that time, 
there can be exceptions to this general principle, such as the 
situation in PD-6(R), ``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.' '' Id.
    As noted by MDEP, another exception to this general principle is 
where the non-Federal requirement purports to broaden the category of 
hazardous materials to include materials that are not regulated under 
the HMR and, thereby, create ``a system of classifying hazardous 
materials which is totally at variance with the system of hazard class 
definitions'' in the HMR. IR-6, 48 FR at 763. See also, e.g., IR-5, 47 
FR at 51993 (additional materials included within the definitions of 
gases ``under pressure'' and ``combustible'' and ``flammable'' gases 
and mixtures); IR-32, 55 FR at 36742 (using a lower threshold of 
activity for regulating waste radioactive material as a ``radioactive 
waste''); PD-18(R), 65 FR at 81953 (``state and local hazard class and 
hazardous materials definitions differing from those in the HMR and 
used to regulate in areas regulated by DOT are preempted) (emphasis 
supplied); PD-23(RF), 66 FR at 37263 (the term ``hospital waste'' in a 
local ordinance encompasses both (1) items that are within the 
definition of `regulated medical waste' in the HMR and (2) other items 
that may not contain any infectious substance and, therefore, are not 
regulated under the HMR'').
    These exceptions do not apply here. As the Alliances itself 
stresses, MDEP regulates used CRTs and CRT glass solely as a ``State-
only'' hazardous or universal waste. There is no evidence that these 
requirements
--pertain to the ``designation, description, and classification of 
hazardous material,'' the ``labeling, marking, and placarding of 
hazardous material,'' or the ``preparation, execution, and use of 
shipping documents related to hazardous material,'' as the term 
``hazardous material'' is used in the Federal hazardous material 
transportation law and the regulations issued under that law;
--otherwise create any ``obstacle to accomplishing and carrying out'' 
the Federal hazardous material transportation law and the regulations 
issued under that law; or
--prevent compliance with any requirement of the Federal hazardous 
material transportation law and the regulations issued under that law.
    Rather, Maine's regulation of intact CRTs as a State-only universal 
waste, and broken CRTs and CRT glass as a State-only hazardous waste, 
is done in a manner that does not create any regulatory confusion or 
jeopardize transportation safety. Maine's approach is consistent with 
DOT's guidance regarding how to describe State-only hazardous wastes, 
as set forth in PHMSA's 1996 letter addressing State-only hazardous 
waste regulated by Utah. Maine's requirements for the manifesting of 
broken CRTs and CRT glass follow the regulations developed by EPA (in 
coordination with DOT) for the manifesting of State-only hazardous 
waste.

VI. Ruling

    Federal hazardous material transportation law does not preempt 
MDEP's regulations on classification of used CRTs as ``universal 
waste'' and broken CRTs and CRT glass as a State ``hazardous waste'' 
and the marking, labeling, shipping documentation, and transporter 
requirements, because these requirements do not apply or pertain to 
materials regulated under Federal hazardous materials transportation 
law and the HMR or otherwise constitute an obstacle to accomplishing 
and carrying out Federal hazardous materials transportation law and the 
regulations issued under that law.

VII. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. A petition for 
judicial review of a final preemption

[[Page 46654]]

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).
    This decision will become PHMSA's final decision 20 days after 
publication in the Federal Register if no petition for reconsideration 
is filed within that time. The filing of a petition for reconsideration 
is not a prerequisite to seeking judicial review of this decision under 
49 U.S.C. 5127(a).
    If a petition for reconsideration is filed within 20 days of 
publication in the Federal Register, the action by PHMSA's Chief 
Counsel on the petition for reconsideration will be PHMSA's final 
action. 49 CFR 107.211(d).

    Issued in Washington, DC, on September 2, 2009.
Sherri L. Pappas,
Acting Chief Counsel.
[FR Doc. E9-21768 Filed 9-9-09; 8:45 am]

BILLING CODE 4910-60-P
