{"operation":"document","citation":"04-0175","title":"Swidler Berlin Shereff Friedman, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-11-16","effective_on":null,"summary":"04-0175 response to Swidler Berlin Shereff Friedman, LLP concerning 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0175.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0175.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0175","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040175.pdf","body":"<<<PAGE 1>>>\n\nU.S. Depanment\nof Transporta ion\n400 Seventh St., S.W.\nWashington, D.C. 20590\nResearch and\nNOV 16 2004\nSpecial Programs\nAdministration\nMr. Robert N. Steinwurtzel\nReference No.: 04-0175\nSwidler Berlin Shereff Friedman, LLP\nSuite 300\n3000 K Street, NW\nWashington, DC 20007-5116\nDear Mr. Stein wurtzel:\nThis responds to your letter concerning the classification and applicability of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) to materials similar to battery litharge and\nred lead which are used in processing battery plates.\nlead, and trace amounts of various elements. The material is in powder form with a median\nYou state that pattery litharge consists of approximately 73-81% lead monoxide, 19-27% free\nparticle size of 2.2 micrometers, and based on a screen analysis, 99% of the particles are smaller\nthan 45 microreters. The chemical composition of 25% red lead is approximately 21-29% lead\ntetraoxide, 69-76% monoxide, a maximum of 2.5% free lead, and trace amounts of other\nelements. The material is in powder form, median particle size is 3.0 micrometers, and based on\nscreen analysis 99.5% of particles are smaller than 45 micrometers. Your letter also indicates\nthat the amount of lead in one package meets or exceeds the Reportable quantity for \"Lead\" in\nAppendix A of § 172.102.\nYour letter includes a number of statements concerning the applicability of the HMR to\nshipments of lead and environmentally hazardous substances. Your understanding of the HMR,\nas outlined in your letter, is correct. With regard to item #1, the reference to \"40 C.F.R.\n§ 172.101, App. A, ... \" on page 2, should read \"49 C.F.R., App. A, ...\"\nYour specific questions are paraphrased and answered as follows:\nQ1. Are products with a chemical composition similar to battery litharge and 25% red lead\nsubject to the HMR?\nAl. Under § 173.22, it is a shipper's responsibility to properly class, package, mark, and label a\nhazardous material for transportation in commerce. This Office generally does not perform this\nfunction. If the materials in question (1) are similar in chemical composition to the battery\nlitharge and 25% Red lead, (2) do not meet the definition of any other hazard class definition in\nPart 173, including hazardous waste or marine pollutant, and (3) meet or exceed the reportable\nquantity for \"Lead\" in Appendix A of the § 172.101 Hazardous Materials Table (HMT) in one\npackage, they are subject to the HMR.\n173.22\n040175\n\n<<<PAGE 2>>>\n\nQ2. How should these hazardous substances be described on the shipping paper?\nA2. \"Lead\" is not listed as a proper shipping name in the HMT; therefore, a shipping\nname that best describes the material must be selected from the generic or n.o.s.\nsession cord, lady, too the saterial end c/ship picking reprie and zave an\nsubsidiary hazard, it any,\nymbol \"G\" in column 1 of the HMT require the technical name of the hazardou:\nnaterial in parentheses in association with the basic description. Hazardous substance\nmeeting only the Class 9 definition may be described as \"RQ, Environmentally hazardous\nsubstances, solid, n.o.s., 9, UN 3077, PG III (lead).\"\nQ3. What marking and placarding requirements apply when these materials are\ntransported in a bulk packaging?\nA3. As required by § 172.302, a bulk packaging containing a hazardous material must be\nmarked with the identification number of the hazardous material; a packaging with a\ncapacity of 1,000 gallons or more must be marked on each side and each end; a\npackaging with a capacity of less than 1,000 gallons must be marked on two opposing\nsides. 'The identification number must be displayed on orange panels, on placards, or on a\nwhite square-on-point display configuration. For domestic transportation, a Class 9\nplacard is not required (see § 172.504(f)(9)).\nQ4. Are carriers transporting hazardous materials in a bulk packaging subject to the\nregistration requirements in 49 CFR 107.601?\nA4. The answer is yes. A carrier who transports a hazardous material in a bulk\npackaging with a capacity greater than 3,500 gallons or 468 cubic feet is subject to the\nregistration requirements.\nI trust this satisfies your inquiry.\nSincerely,\nHalte z: Metthel\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice if Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nCovPIr\n$173.23\nSWIDLER BERLIN SHEREFF FRIEDMAN, LLP\nClassification\n3000 K STREET, NW, SUITE 300\nTHE WASHINGTON HARBOUR\n04-0175\nWASHINGTON, DC 20007-5116\nROBERT N. STEINWURTZEL\nTELEPHONE (202) 424-7500\nTHE CHRYSLER BUILDING\nNEW YORK OFFICE\nTELEPHONE: (202) 424-7830\nFACSIMILE (202) 424-7643\n405 LEXINGTON AVENUE\nRNSTEINWURTZEL@SWIDLAW.COM\nFACSIMILE: (202) 424-7645\nWWW.SWIDLAW.COM\nTELEPHONE (212) 973-0111\nNEW YORK, NY 10174\nFACSIMILE (212) 891-9598\nJuly 21, 2004\nMr. Edward T. Mazzullo\nDirector, Office of Hazardous Materials Standards\nU.S. DOT/RSPA (DHM-10)\n400 7th Street, S.W.\nWashington, D.C. 20590-0001\nRe:\nBattery Litharge and Red Lead\nDear Mr. Mazzullo:\nI am writing for clarification to determine the classification of products known as battery\ntypes of products when used for the manufacture of automotive batteries.\nThe chemical composition of the battery litharge is approximately 73-81% lead\nmonoxide, 19-27% free lead, and trace amounts of various elements. Battery litharge has a\ntypical value of 26% free lead. The material is in powder form with a median particle size of 2.2\nmicrometers. A screen analysis (325 mesh) indicates that 99% is finer than 45 micrometers.\nThe chemical composition of 25% Red Lead is approximately 21 to 29% lead tetraoxide,\nThe material is in powder form with a median particle size of 3.0 micrometers. A screen\n69% to 76% lead monoxide, a maximum of 2.5% free lead, and trace amounts of other elements.\nanalysis (325 mesh) indicates that 99.5% is finer than 45 micrometers.\nfollows:\nMy understanding of the Hazardous Materials Regulations, 49 C.F.R. Parts 171-180, is as\nLead is listed as a hazardous substance under 49 C.F.R. § 172.101, Table 1 to\nAppendix A. The reportable quantity for lead is 10 pounds, but only applies to\n\n<<<PAGE 4>>>\n\nMr. Edward T. Mazzullo\nJuly 21, 2004\nPage 2\nthose pieces of metal that have a diameter smaller than 100 micrometers (0.004\ninches). 40 C.F.R. § 172.101, App. A, Table 1, n.é. A single package of material\ncontaining a reportable quantity of lead would meet the definition of a hazardous\nsubstance, which falls under the definition of hazardous material. 49 C.F.R.\n§ 171.8.\nNeither lead monoxide (PO) nor lead tetraoxide (Pb304) are listed as hazardous\nsubstances or as a hazardous material under the Hazardous Material Regulations.\nAlthough these are lead compounds, it is our understanding that they do not meet\nthe definition of \"Division 6.1\" (poisonous material) under 49 C.F.R. § 173.132\nand, thus, do not fall under \"lead compounds, soluble, n.o.s.\" See Letter from\nHattie L. Mitcheil, Chiei, Regulatory Review and Reinvention, Office of\nHazardous Materials Standards, U.S. DOT, to Jeffrey T. Miller, Lead Industries\nAss'n, Inc., Mar. 17, 2000, p. 1.\n3)\nLead is not listed in the Hazardous Material Table under 49 C.F.R. § 172.101, but\nis listed as a hazardous substance. For a solid product containing lead, a\nhazardous substance that is not otherwise specified, the proper shipping name\nwould be \"Environmentally hazardous substance, solid, n.o.s.\" For domestic\ntransport of hazardous substances that are not hazardous wastes, however, \"Other\nregulated substances, liquid or solid, n.o.s.,\" as appropriate, may be used as the\nshipping description. 49 C.F.R. § 172.102(c)(1).\nThe class listed for \"Environmentally hazardous substances, solid, n.o.s.\" is Class\n9, which is the hazard class for a hazardous material that meets no other hazard\nclass, including any material that meets the definition of a hazardous substance.\n49 C.F.R. § 173.140. The identification number and packing group is UN3077\nand PG III, respectively. For such generic names, the technical name of the\nhazardous material must be included in parenthesis, e.g., (lead). 49 C.F.R.\n§§ 172.101(b)(4), 172.203(c)(1).\n5)\nAny package of 40 pounds or more of battery litharge, as described above, would\nmeet the definition of hazardous substance (e.g., 40 Ibs x 99% x 26% = 10.3 Ibs),\nand thus be subject to the HMR.\n6)\nAny package of 400 pounds or more of 25% Red Lead, as described above, would\nmeet the definition of hazardous substance (e.g., 400 Ibs x 99.5% × 2.5% = 10 lb)\nand thus be subject to the HMR.\n7)\nGeneral marking requirements for bulk packages require the identification\nnumber on each side and each end of the packaging of 1,000 gallons or more, or\non two opposing sides if less than 1,000 gallons. 49 C.F.R § 172.302. Although\nfor domestic transportation a Class 9 placard is not required, subpart D of the\nHMR require identification numbers be on placards, orange panels, or white-\nsquare-on-point display configuration that meet the requirements of 49 C.F.R.\n§ 172.332 for either non-bulk or bulk-packaging. 49 C.F.R. §§ 172.331, 172.332,\n\n<<<PAGE 5>>>\n\nMr. Edward T. Mazzullo\nJuly 21, 2004\nPage 3\n172.504(f)(9). A Class 9 label is also required for non-bulk packages and bulk\npackagings (other than a cargo tank, portable tank or tank car with a volumetric\ncapacity of less than 640 cubic feet), unless the bulk package is placarded in\naccordance with subpart F. 49 C.F.R. §§ 172.400(a), 172.446. For bulk\npackaging, then, an orange panel with the proper shipping identification is\nsufficient to meet the marking, labeling and placarding requirements of subparts\nD, E and F of the HMR.\nPlease confirm that our understanding of the HMR as outlined above is accurate. In\nparticular, please verify that (a) products with a similar chemical composition as the battery\nlitharge and 25% Red Lead described above must meet the HMR for packages containing at least\nand transported in bulk trucks in these amounts or more are properly labeled with an orange\n40 pounds and 400 pounds of the product, respectively, and (b) these products when packaged\n›anel and identified as \"RQ, Environmentally hazardous substances, solid, n.o.s., Class 9\nJN3077, PG III (lead)\" to meet the requirements of the HMR. Finally, please confirm tha\ntransporters of these products in bulk packaging having a capacity of more than 13.24 cubic\nI appreciate your prompt attention to this matter. Thank you in advance for your time\nand assistance.\nSincerely,\nRobert N. Steinwurtzel","truncated":false,"body_characters":10427}