{"operation":"document","citation":"00-0235","title":"North American Transportation Consultants, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2000-09-12","effective_on":null,"summary":"00-0235 response to North American Transportation Consultants, Inc. concerning 173.2.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0235.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0235.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0235","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2000/000235.pdf","body":"<<<PAGE 1>>>\n\n:\nU.S. Department\n400 Seventh Streel, S.W.\nof Transportation\nWashington, D.C.\n20590\nResearch and\nSpecial Programs\nAdministration\nSEP 1 2 2000\nMr. J.P. Gibbons\nRef. No. 00-0235\nPresident, North American Transportation\nConsultants, Inc.\nP.O. Box 1404\nHightstown, New Jersey 08520\nDear Mr. Gibbons:\nThis responds to your letter, postmarked August 21, 2000, requesting clarification of the requirements\nof the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the reuse of\nplastic drums.\nFor the most part, your understanding of the HMR requirements, as indicated by the numbered\nstatements and questions in the first part of your letter, is correct. Generally, plastic drums intended for\nreuse must conform to the requirements for reuse of non-bulk packagings in § 173.28, including\nrequirements applicable to leakproofness tests and marking.\nSection 173.28(b)(7) authorizes reuse of packagings, including plastic drums, without leakproofness\ntesting provided the packaging is: (1) refilled with a material that is compatible with the original lading;\n(2) refilled and offered for transportation by the original offeror; and (3) transported in a transport\nvehicle or freight container under the exclusive use of the refiller of the package. The exclusive-use\ntransport vehicle may be operated by a private, common, or contract carrier; however, the transport\nvehicle may not contain any material offered for transportation by any person other than the filler of the\ndrums. Under the scenarios you describe in questions 6 and 7 of your letter, the plastic drum may be\nrefilled and offered for transportation without leakproofness testing. However, the exception from\nleakproofness testing in § 173.28(b)(7) does not apply to the scenario described in question 8 of your\nletter because storage at a public warehouse, whether in-transit or otherwise, breaks the continuity of\nclosed-loop distribution systems that served as the model for that provision in the HMR.\nYou ask whether a distribution facility is considered the original offeror or filler for purposes of the\nexception in § 173.28(b)(7) when a plastic drum is offered for transportation from the distribution\nfacility. The answer is yes, provided that the distribution facility is operated by the same person who\n000235\n\n<<<PAGE 2>>>\n\nrefilled the package. Note that in order to utilize the exception, the transport vehicle must be under the\nexclusive use of the person who refilled the package. If, in addition to the plastic drum, the transport\nvehicle contains materials offered by a person other than the refiller of the package, as is the case in the\nscenario you describe in question 11, then the transport vehicle is not under the exclusive use of the\nrefiller, and the exception from leakproofness testing in § 173.28(b)(7) does not apply.\nYou report that recent actions taken by the Environmental Protection Agency (EPA) except certain\nspent hazardous materials from Hazardous Waste Manifest requirements in 40 CFR part 262. Since\nEPA-excepted spent materials are not hazardous wastes as that term is defined in § 171.8 of the HMR,\nthey may not be offered for transportation or transported to a re-processor under the provisions of\n§ 173.12(c). If you believe that the exception in § 173.12(c) should also apply to spent hazardous\nmaterials that do not meet the HMR definition for hazardous waste, it would be helpful if you were to\nprovide support for that proposal by filing a petition for rulemaking in accordance with 49 CFR 106.31.\nI hope this information is helpful. If you have further questions, please do not hesitate to contact this\noffice.\nSincerely,\nDirector, Office of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nGorsky\n173.28\nNATC\n00-0235\nAugust 7, 2000\nMr. Edward T. Mazzullo\nDirector. Office of Hazardous Materials Standards\nResearch and Special Programs Admin. - DHM-10\nU.S. Department of Transportation\n400 Seventh Street, SW\nWashington, DC 20590\nRE: LEAKPROOFNESS TESTING OF PLASTIC DRUMS - 173.28 (b)(7)\nDear Mr. Mazzullo:\nAs your files will show, our firm has written several times in the past concerning this subject.\nEach time we have received guidance from your office and have passed it along to numerous\nindustry representatives and individual companies. Recently several companies have been\nvisited by the enforcement section of RSPA in their efforts to verify compliance with 173.28.\nThese visits have reveled conflicts in the compliance efforts of the industry with respect to the\nreuse of plastic drums. Therefore, in another attempt to hit this moving target with the proper\nmix of compliance and practical application as they both relate to safety, the following questions\nand examples are submitted for formal guidance.\nPlease review the following questions/statements and advise if you agree with them or provide\nthe correct answer:\n1. If one wishes to reuse a plastic drum for hazardous materials they must either have it\nreconditioned or comply with the requirements for reuse in 173.28.\n2. Unless one meets an exception in paragraph (b) the plastic drum must be leakproofness\ntested before each refilling of hazardous materials.\n3. If you leakproofness test a plastic drum you must mark each drum with \"L\" and the year\niesied along with the name and acidress of the tester or a symbol issued by RSPA.\n4. The test must be performed according to 178.604 which requires each drum to be\n\"restrained under water while an internal air pressure is applied\".\n5. The pressure applied for the leakproofness test required under 173.28 is higher for the\nPG I then it is in the original test contained within 178.604.\n6. Under 173.28 (b)(7), if you fill a plastic drum with hazardous material requiring a\nspecification container, place the drum on your private transport vehicle, deliver the\nmaterial directly to your customer who uses the material, then your vehicle picks up the\nempty container and returns it to the filling location which refills the drum with a like\nmaterial, can you use the referenced exception and ship the drums out a second time\nwithout leakproofness testing?\nNORTH AMERICAN TRANSPORTATION CONSULTANTS, INC.\nYour Total Transportation and Safety Consultants\nPO. Box 1404 • Hightstown, NJ 08520 • 609-426-0555\n\n<<<PAGE 4>>>\n\nPage 2 of 3\n7. If the facts in #6 are used but the material goes to your warehouse for \"storage in transit\"\nbefore it is delivered to the customer, can I still use the referenced exception?\n8. If the warehouse used in #7 is a public warehouse does that make a difference?\n9. Does it make a difference if the transport vchicle used to move the materials in the\nexclusive use?\nplastic drums is a Common, Contract or Private carrier as long as the vehicle is\n10. If my company has a sales agreement with another company to act as our distributor of\nthese plastic drums in several parts of the country, does RSPA consider them to be the\noriginal filler (under 173.28 (b)(7)(ii)) when the material is offered from their\ndistribution facilities?\n11. Can I use the exception contained in 173.28 (b)(7) to refill and offer hazardous material\nin plastic drums without leakproofness testing if I control the distribution chain for these\ndrums, refill them with like materials and make sure the vehicles which transport them\nare under exclusive use (as used here exclusive use would mean transporting these\nplastic drums along with only my muterial or that of my authorized distributor)?\nDuring my attempts to clarify this compliance issue, several additional twists have been noted\nwhich require addressing by RSPA. These twists are noted below and it is request that they be\naddressed in your reply to this letter or in a separate reply as you deem appropriate.\nSpent materials are being shipped back to the original manufacture of the product for re-\nprocessing by small users of hazardous materials in plastic drums. These shipments were\npreviously covered under the exception in 173.28(b)(6). In the past two (2) years the EPA has\nissued letters of authorization removing these materials from the requirement for a waste\nmanifest.\nPlease review the following statements/questions and advise if they are accurate or if I may be\nmisinformed and drawing the wrong conclusion. In this case I look forward to being wrong and\ncorrected by your considerate staff.\n1. It is my understanding that without the manifest requirement these materials do not meet\nthe definition of a \"hazardous waste\" in 171.8 and as such can not use 173:28(b)(б).\n2. Is it possible that since these materials are being sent directly to the re-processor, they\nmeet the intent of par (b)(6) and as such can still be filled and offered under that\nexception?\n3. It will be impossible for these small manufacturers to leakproofness test these drums as\noutlined above (178.604) and as such would be required to purchase new drums to return\nspent material for re-processing. This would place an unreasonable financial hardship on\nthese shippers while not improving safety at all.\nIn discussions with Mr. James Jones of the Approvals section it was determined that the marking\nrequirements and testing requirements contained within 173.28 could be easily confused with the\n\n<<<PAGE 5>>>\n\nPage 3 of 3\nreconditioning requirement for the plastic drums. Therefore, it appeared to be more preferable\nand probably safer to have offers covered under 173.28(b)(7).\nThank you for your time and assistance in this matter. If yoú require additional information feel\nfree to contact me directly at (609) 426-0555.\nSincerely,\nP. Gibbon:\nPresident","truncated":false,"body_characters":9565}