[Federal Register: May 6, 2008 (Volume 73, Number 88)]
[Notices]
[Page 25079-25094]
[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

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.<PHONE_NUMBER>;
facsimile No.<PHONE_NUMBER>.

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

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

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

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

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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    \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.

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

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

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

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\
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

     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.

    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

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.,

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,

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

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

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.

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