{"operation":"document","citation":"04-0218","title":"Mr. Walter J. Pociask — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-10-26","effective_on":null,"summary":"04-0218 concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0218.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0218.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0218","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040218.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh St., S.W.\nWashington, D.C. 20590\nSpecial Programs\nResearch and\nOCT 26 2004\nAdministration\nMr. Walter J. Pociask\nRef. No.: 04-0218\n21833 Knudsen Drive\nGrosse Ile, MI 48138-1320\nDear Mr. Pociask:\nThis is in response to your September 2, 2004 letter requesting\nclarification of the applicability of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180). Specifically, you ask\nif your lab packs are under the sole jurisdiction of the HMR\nwhen hazmat employees start filling hazardous materials\npackagings (i.e., performing pre-transportation functions).\nOn October 30,, 2003, the Research and Special Programs\nAdministration (RSPA, we)\npublished a final rule under Docket\nHM-223 entitled \"Applicability of the Hazardous Materials\nRegulations to Loading, Unloading, and Storage.\"\nThe HM-223\nfinal rule clarifies the applicability of the HMR to specific\nfunctions and activities, including hazardous materials loading\nand unloading operations\nand storage of hazardous materials\nduring transportation. The final rule codifies in the HMR\nlong-standing policies and interpretations concerning the\napplicability of the regulations to specific functions and\noperations.\n\"We initiated the rulemaking to better define the\napplicability of the HMR to loading, unloading, and storage\noperations at fixed facilities and to clarify the relationships\namong Federal, State, local, and tribal agencies involved in the\nregulation of hazardous materials. To this end, the final rule\ndiscusses the relationship of the HMR to worker protection\nregulations promulgated by the Occupational Safety and Health\nAdministration (OSHA) and environmental protection regulations\nissued by the Environmental Protection Agency (EPA). In\naddition, the final rule discusses preemption provisions\ncontained in the Federal hazardous materials transportation law\n(Federal hazmat law; 49 U.S.C. 5101 et seq.).\nAs explained in the HM-223 final rule, pre-transportation\nfunctions are functions performed to prepare a hazardous\nmaterial for transportation in commerce.\nPre-transportation\nfunctions include activities such as determining a material's\n1/.1\n040218\n171.8\n\n<<<PAGE 2>>>\n\nhazard class; selecting a packaging; filling and closing a\npackaging; marking and labeling a package; preparing shipping\npapers and emergency response information; and selecting and\naffixing placards.\nThe Federal hazmat law does not preempt other Federal statutes\nnor does it preempt regulations issued by other Federal agencies\nto implement statutorily authorized programs. Facilities at\nwhich pre-transportation functions are performed, therefore, may\nbe subject to EPA regulations governing risk management;\ncommunity right-to-know; hazardous waste tracking and disposal;\nand spill prevention, control\nand countermeasures.\nConcerning\nyour specific question, a facility that performs both hazardous\nwaste management functions and pre-transportation functions must\nensure that the functions subject to regulation under the HMR\nare performed in accordance with the HMR and must also ensure\ncompliance with applicable EPA requirements addressing the\nenvironmental concerns associated with the hazardous waste\nmanagement functions at the facility. Specific questions\nconcerning the applicability of EPA hazardous waste management\nregulations to your facility, including questions concerning\nlong-term storage permits and satellite accumulation areas,\nshould be directed to the appropriate EPA office.\nI hope this information is helpful. If you have further\nquestions, please do not hesitate to contact this office.\nSincerely,\nHothe z. Mitchel\nHattie I. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nPollack\n5171.1\nSeptember 2, 2004\n$171.8\nMr. Edward Mazzullo, Director\nDefinitions\nOffice of Hazardous Materials Standards\n04-0218\nUSDOT/RSPA (DHM-10)\n400 7* Street SW\nWashington, DC 20590-0001\nDear Mr. Mazzullo:\nI was given your name and address by Cameron, in your office. The purpose of\nmy letter is to request a specific interpretation of the pre-transportation definition.\nPre-transportation, as I read the text, describes the functions which persons\nperform when they are lab-packing hazardous materials, immediately prior to\nactually loading of hazardous materials on a vehicle, for the purpose of shipping\nthem off-site for disposal. The term of pre-transportation, as I understand it,\nwould be one of the very first steps of transportation in commerce, if I understand\nthe proposed regulation correctly.\nOur company tries very hard to handle wastes in a 100% legal manner, fully In\ncompliance with all Federal and State regulations promulgated by OSHA, EPA,\nDOT, and all of their corresponding State agencies. While reading the text\nregarding the concept of pre-transportation, we noted that this regulation would\npre-empt federal and state regulations that may be in conflict. We certainly do not\nwish to proceed without full clarification of this term \" pre-transportation\". We see\nan area of difficulty, where the EPA waste storage accumulation \"clock\" ends,\nand DOT pre-transportation starts.\nOur Company utilizes hazardous materials of several different types. These\nmaterials are usually laboratory chemicals, and are typically in original container\nsizes of a few ounces to 55 gallons in size. These chemicals are used for\n\n<<<PAGE 4>>>\n\nchemical experiments. When the chemicals are combined for experimental\npurposes, they are usually not of any further use, and we must dispose of them.\nFurthermore, on occasion, even partially full containers of unused chemicals\nneed to be discarded.\nUnder the Federal EPA guidelines, and mirrored in State of Michigan guidelines,\nwe have a set period of time to store these materials (90 days) without needing\nlong-term- storage permits. Another aspect of the EPA regulations states that we\nare allowed to accumulate up to 55 gallons in a \"satellite accumulation area\"\nbefore we are obligated to dispose of these materials. When we lab-pack waste\nchemicals in order to dispose of them, we gather up the chemicals from several\nof these satellite accumulation areas, into a single location, where we would then\nproceed with consolidating these smaller containers into several different 55-\ngallon containers, dependent upon their DOT classifications. We see that, as )\nsoon as we begin to consolidate these chemicals into the second 55-gallon drum,\nwe are \"technically\" in violation of the EPA regulation, unless we are already\nunder the sole jurisdiction of DOT at this point. If we are regulated solely by the\nDOT regulations at the point that we commenced lab-packing, then we would not\nbe in violation of this EPA satellite accumulation rule, because the EPA storage\nrule would already have been pre-empted. At that precise point, the EPA storage\nclock stops, and the DOT pre-transportation function, would apply. Frankly, this\nmakes sense to me. I hope that you agree with this logic. I am ready to further\nclarify my situation if necessary. Thank you, in advance, for any assistance you/\ncan provide.\nWalter J. Pociask\n21833 Knudsen Drive\nGrosse lle, MI 48138\n(734) 676-1763 (phone and FAX)\nwpociask@excite.com","truncated":false,"body_characters":7231}