{"operation":"document","citation":"01-0172","title":"State of New Jersey — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2001-09-20","effective_on":null,"summary":"01-0172 response to State of New Jersey concerning 172.506.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-01-0172.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-01-0172.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-01-0172","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2001/010172.pdf","body":"<<<PAGE 1>>>\n\nf Transportatic\n.S. Departmer\n400 Seventh St., S.W.\nWashington, D.C. 2059C\nResearch and\nSEP 2 0 2001\nSpecial Program:\nAdministratior\nMr. William S. Krimson\nRef. No. 01-0172\nSupervisor, Transportation Oversight Unit\nState of New Jersey\nDepartment of Environmental Protection\nP.O. Box 407\nTrenton, NJ 08625\nDear Mr. Krimson:\nThis is in response to your June 29, 2001 letter regarding the applicability of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you are requesting that\nRSPA reconsider the February 23, 2001 letter of clarification issued by this office regarding the\nplacarding requirements at transfer facilities.\nAs specified in § 171.1, the HMR govern the safe transportation of hazardous material in\nintrastate, interstate, and foreign commerce. The HMR do not specify when placards must be\napplied to or removed from a motor vehicle. However, under § 172.506(a), each person offering\nrequired placards for the material being offered prior to or at the same time the material is offered\na motor carrier a hazardous material for transportation shall provide to the motor carrier the\nfor transportation. In addition, no motor carrier may transport a hazardous material in a motor\nvehicle, unless the placards required for the hazardous material are affixed thereto. At any time\nprior to the vehicle entering onto a road accessible by the public, the offeror has the opportunity\nto offer the required placards and the carrier has the opportunity to apply them. The HMR do not\nrequire that a trailer being loaded at a facility be placarded as soon as the threshold for placarding\nis reached.\nYou should also be aware that the Occupational Safety and Health Administration (OSHA) of the\nDepartment of Labor under 29 CFR 1910.1201 requires any employer who receives a package,\nfreight container, rail freight car, motor vehicle or transport vehicle of hazardous material which\nis required to be marked, labeled or placarded in accordance with the HMR to retain those\nmarkings, labels and placards on the package, container or vehicle until the hazardous material is\nufficiently removed to prevent any potential hazard. Therefore, under the OSHA requirements\nailer which is received at a facility containing a quantity of hazmat which requires placard\nmust continue to display placards as long as there is a placardable quantity in it.\n172.506\n010172\n\n<<<PAGE 2>>>\n\napplicability of the HMR to loading, unloading, and storage of hazardous materials (66 FR\nOn June 14, 2001, RSPA published a notice of proposed rulemaking (NPRM) on the\n32420; HM-223). We are proposing to clarify the applicability of the HMR functions and\nactivities, including hazardous materials loading and unloading operations and storage of\nhazardous materials during transportation. The HM-223 rulemaking has four overall goals. First,\nwe want to maintain nationally uniform standards applicable to functions performed in advance\nof transportation to prepare hazardous materials for transportation. Second, we want to maintain\nnationally uniform standards applicable to transportation functions. Third, we want to distinguish\nfunctions that are subject to the HMR from functions that are not subject to the HMR. Finally,\nwe want to clarify that facilities within which HMR-regulated functions are performed may also\nbe subject to federal, state, or local regulations governing occupational safety and health or\nenvironmental protection.\nTo this end, I encourage you to submit written comments on the NPRM. You can submit and\nreview comments on-line at the DOT Dockets Management System web site at\n\"http://dms.dot.gov/.\" The comment period closes November 30, 2001; we will consider late-\nfiled comments to the extent possible as we develop a final rule.\nI hope this information is helpful. If you have further questions, please do not hesitate to contact\nthis office.\nSincerely,\nElen i Mazulle\nDirector, Office of Hazardous\nEdward T. Mazzullo\nMaterials Standards\n\n<<<PAGE 3>>>\n\n-\n-\nBetts\n§ 112.3.06\nPlacarding\nState of Neta Jerseg\n01-0172\nDONALD T. DIFRANCESCO\nActing Governor\nDepartment of Environmental Protection\nRobert C. Shinn, Jr.\nWaste Compllance and Enforcement\nCommissioner\nAnd Release Prevention\nJune 29, 2001\nRobert McGuire, Associate Administrator\nResearch and Special Programs Administration\nOffice of Hazardous Materials Safety\n400 Seventh Street, SW, Suite 8321\nWashington, DC 20590\nRef: Placarding Responsibilities at Transfer Facilities\nDear Sir:\nI am asking for re-consideration of the enclosed February 23, 2001 interpretation issued by the Office\nof Hazardous Materials Standards.\nMr. Allan's response to the scenarios posed by Supervisor Krimson in his October 24, 2000 letter\ncreates the potential for a serious transportation hazard regarding the interlining of hazardous waste\ncargo. The New Jersey Department of Environmental Protection routinely monitors twenty-six ten-\nday hazardous waste transfer facilities located in New Jersey. Some of these facilities are merely\nparking lots which are unmanned after normal business hours with at best, an on site portable office\ntrailer. As I understand Mr. Allan's response, because the hazardous waste in our scenario is not\n\"offered\" for transportation until loading is complete, placarding is not required.\nThe hazardous materials transportation regulations and federal EPA regulations allow the bulk\ncommingling of different hazardous wastes (materials) while in transit at such ten-day transfer\nfacilities. If I extrapolate RSPA's thinking and apply it to bulk transportation, we are faced with\npartially loaded cargo tanks being parked for numerous days and since they are not yet \"loaded\" as\ndefined by Mr. Allan's letter, they need not be placarded. This situation exists in the waste industry\nwhere smaller trucks relay loads into larger trucks thereby saving transportation costs.\nRSPA's decision that placarding is not required on vehicles containing non-bulk packages of\nhazardous waste and seemingly bulk shipments of hazardous materials in-transit, seems to be\ncontrary to RSPA's purpose of fostering the safe transportation of hazardous materials. This\ninterpretation is inconsistent with earlier interpretations issued by RSPA as to when transportation\nbegins and whether or not State specific regulations apply to ten-day transfer facilities, some of\nwhich have been preempted in the past. From Mr. Allan's letter it would appear that the waste has\nreached its intended destination and therefore is not subject to DOT regulation until re-loading has\nNew Jersey is an Equal Opportuniry Employer\nRecycled Paper\n\n<<<PAGE 4>>>\n\nbeen completed. Please consider the fireman or emergency response individual responding to a fire\ninvolving one of these waste laden vehicles, (something that is not uncommon in the waste\ntanker but have no indication as to what is aboard nor personnel available to question concerning it.\ntransportation industry). These individuals arrive to find smoke coming from a trailer or carg‹\ncontents. Since these loads may take days to be built, partial truckloads of hazardous waste are\nparked about these facilities on a continuous basis.\nThis is the situation we are currently facing if this matter is not reversed. We are not insisting that\nplacards be changed every time the load changes as Mir. Allan has suggested. It is reasonable,\nrepresentative on site. I also disagree that 49 CFR 172.506(a)(1) applies to carriers in-as-much-as\nnowever, to require that placards be affixed to in-transit vehicles when there is no carrier\na carrier is not the offerer of the hazardous materials in question. A carrier does not re-offer\nhazardous waste under any of the scenarios presented herein or in Supervisor Krimson's initial letter\nand therefore cannot, and should not, assume the role of the shipper/offerer.\nThis issue is a perfect example of why states must have purview over activities at \"storage incidental\nto transpiration\" facilities. It also points out how the HMR are not designed to deal with storage or\nrequire that vehicles containing hazardous materials be placarded while they are in storage in transit.\nrepackaging issues. I urge you to reconsider that it is not unreasonable, as RSPA has stated, to\nThe New Jersey Department of Environmental Protection is anxious to comment on the pending\nNotice of Proposed Rule Making for HM-223.\nIf you require any additional information please contact Supervisor William Krimson at (609) 588-\n3158 or myself at (609) 292-6704.\nSincerely,\nEncl.\nV:WCERP\\1O Day RSPA Interpretation.doc\n\n<<<PAGE 5>>>\n\nU.S. Department\n400 Seventh St., S.W.\nResearch and\nof Transportation\nWashington, D.C. 20590\nSpecial Programs\nAdministration\nFEB 2 3 2001\nMr. William S. Krimson\nState of New Jersey\nSupervisor, Transportation Oversight Unit\nDepartment of Environmental Protection\nP.O. Box 407\nTrenton, NJ 08625\n•\nDear Mr. Krimson:\nThis is in response to your October 24, 2000 letter questioning the timing of the application\nof placards to a trailer that is in the process of being loaded but contains a quantity of\nhazardous materials for which placarding is required.\nThe scenarios presented in your letter deal with the transportation of hazardous wastes in\nnon-bulk packagings and the transfer of these packages between vehicles at a facility and\nfrom the facility into vehicles. Specifically, you ask at what point the transport vehicle must\nbe placarded, 1.e., when the minimum placardable quantity of hazardous materials is\nexceeded or when the transport vehicle is fully loaded at the transfer facility.\nIt is the opinion of this Office that the transport vehicle must be placarded at the time of\nmovement of the vehicle. A shipper or carrier cannot reasonably be expected to determine\nthe appropriate placards that must be displayed on a transport vehicle until the loading or\nunloading process is completed. It is also not practical for a carrier to constantly change\nlacards on a transport vehicle as different hazardous materials are loaded onto or unloadec\n172.506(a) dnes not occur until the loading is completed. Similarly, until the loading is\nfrom the transport vehicle. The \"offering\" for transportation referred to in 49 CFR\ncompleted, the motor carrier has not begun \"transporting\" the hazardous materials within\nthe meaning of Section 172.506(a)(1).\nI hope this satisfies your inquiry. If we can be of further assistance, please contact us.\nSincerely,\namn s. All\nThomas G. Allan\nSenior Transportation Regulations Specialist\nOffice of Hazardous Materials Standards\n\n<<<PAGE 6>>>\n\nState of New Jersey\nChristine Todd Whitman\nGovernor\nDepartment of Environmental Protection\nRobert C. Shinn, Jr.\nCommissioner\nWaste Compliance & Enforcement & Release Prevention\nBureau of Hazardous Waste Compliance & Enforcement\nTransportation Oversight Unit\nP.O. Box 40.\n:\n:\n:\nOctober 24, 2000\nMr. Edward Mazzullo, Director\nU.S. Department of Transportation\nOffice of Hazardous Materials Standards\n400 Seventh Street, SW, Suite 8321\nWashington, DC 20590\nRef: Placarding Responsibilities At Transfer Facilities\nDear Mr. Mazzullo:\nIn question is the timing of the application of placards to a trailer which is partially loaded but\nI am seeking a determination of the applicability of the placarding requirements at 172.506 (a) 1.\nbeyond the quantities necessary for Table II material.\nIn this scenario Company A, a for-hire carrier, transports placarded loads of non-bulk hazardous\nwaste to Company B's transfer facility, also a for-hire carrier. This material is off loaded to a\nloading dock or into a fixed building by Company A's driver who then departs the facility having\nhad the hazardous waste manifest signed by Company B who becomes transporter number two in\naccordance with 40 CFR 263.20 (d) 1.\nCompany B, at some point, places the hazardous waste from the loading dock into one of their\nempty trailers along with other packages that are arriving throughout the day from numerous\nother shipments by their own vehicles or by other carriers. Some material is loaded truck-to-\ntruck; other material is loaded from a fixed storage building. It is my understanding of 177.506\n(a) 1, that at the point where a placardable quantity of any Table II material is placed into the\nempty trailer, placards must be immediately affixed for that material. I reason that since the\nmaterial is in transit, placarding applies.\nCompany B, having been cited by this agency for failing to placard the vehicle, argues that since a\nfull load had not yet been placed aboard the trailer and the doors were not closed, placarding\ndeterminations could not have been made. Furthermore, they argue that the load had not yet been\n\"offered\"; therefore, placards need not be offered to the carrier, (themselves).\nNew Jersey is an Equal Opportunity Employer\nDrauriad. Paner_.-...\n\n<<<PAGE 7>>>\n\nRSPA, Transfer Facility Placarding\nPage 2 of 2\nrequired immediately upon the placement of an amount in excess of 1000 pounds of any Table II\nIt is my opinion that since the material was in storage incidental to transportation, placarding is\nmaterial and upon the placement of any amount of Table I material into the unplacarded trailer. I\nmaintain that Company B is not the \"offerrer\" of the material and is responsible for placarding\nsince the material is now in their vehicle.\nTwo other carriers are involved in a variation of this issue.\nIn this case, Company A delivers\n¿ 40CFR 263.20 (d) 1). I maintain that Company B is responsible for placarding their traile\nompany A for tailing to obtain Company B's date and signature on the manifests (172.205 (d)\ndespite their not having taken possession of the waste by not signing the manifest and despite\nusing Company A's drivers to load their trailer.\nSince New Jersey has twenty-six hazardous waste transfer facilities in operation throughout the\nstate, we are interesting in applying these requirements in a fair and consistent manner. As these\nenforcement actions are pending administrative hearings, please evaluate these scenarios and\nadvise us as soon as possible if we are applying these rules properly.\nShould you require additional details please don't hesitate to contact me at (609) 588-3158 or\ne-mail me at bkrimson@dep.state.nj.\nincere.\nKindne\nWilliam S. Krimson, Supervisor\nTransportation Oversight Unit","truncated":false,"body_characters":14296}