DLA Piper Rudnick Gray Cary US LLP — Hazardous Materials Safety Interpretation

Page 1J.S. Departmen of Transportatior 400 Seventh Street, S.W. Washington, D.C. 20590 Pipeline and Hazardous Materials Safety Administration APR 20 2006 Mr. Paul D. Ackerman DLA Piper Rudnick Gray Cary US LLP Ref. No. 06-0062 1220 icon, D.CS. 20036-2412 Dear Mr. Ackerman: This is in response to your March 10, 2006 letter requesting clarification on the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the transportation of electric storage batteries. You provide three ditterent transportation scenarios. Specifically, you ask if your electric storage batteries satisfy the exceptions in § 173.159 when they are offered and transported under the conditions described in each scenario. Each scenario is summarized, and the answer for each scenario is provided as follows: Scenario 1: A facility ships (1) used non-spillable wet electric storage batteries that meet all the conditions of the exception in § 173.159(d); and, (2) used wet electric storage batteries (i.e. not "non-spillable") that are loaded and transported in accordance with all of the conditions of the exception in § 173.159(e). The "non-spillable" wet electric storage batteries and the wet electric storage batteries are placed into the same outer packaging for transportation. The batteries are offered for transportation by highway only. Answer 1: Your understanding is correct. Both the used "non-spillable" wet electric storage batteries and the wet electric storage batteries meet the excoptions in § 173.159. Placing both types of batteries in the same outer packaging does not preclude the use of the exceptions in § 173.159. Scenario 2: Assume the same facts set forth in Scenario 1, except the used wet electric storage batteries, which are not "non-spillable," are not loaded and transported in a manner that complies with § 173.159(e) (e.g., the transport vehicle carries other materials not shipped by the company that is shipping the batteries). Answer 2: Your understanding is correct. The "non-spillable" wet electric storage batteries are excepted from the requirements of the HMR in accordance with the exception in § 173.159(d). However, the wet electric storage batteries, which are not "non-spillable," are not eligible for the exception in § 173.159(e) and must be placed in packagings authorized by §§ 173.159(b) or (c), and they must be offered and transported 173.159 060062#

Page 2in accordance with all applicable requirements of the HMR (e.g., marking, labeling, provided the outer packaging is authorized in §§ 173.159(b) or (c), and the completed shipping papers). Both battery types may be placed in the same outer packaging package is properly marked and labeled Scenario 3: Assume the same facts set forth in Scenario 1, except some of the used wet electric storage batteries show signs of leakage or potential leakage (e.g., corrosion or damage). The facility individually places any damaged or leaking battery into a strong plastic polyethylene battery shipping bag to prevent any release of battery fluid during transportation. The batteries are then packaged along with the other used wet electric storage batteries as described in Scenario 1. Answer 3: The undamaged wet electric storage batteries are not subject to the requirements of the HMR. See Answer 1. Damaged batteries are not eligible for the exception in § 173.159(e) if the damage has rendered them incapable of retaining battery fluid inside the outer casing during transportation. However, a damaged battery may be shipped under the exception § 173.159(e) if: (1) it has been drained of battery fluid to eliminate the potential for leakage during transportation; (2) it is repaired and/or packaged in such a manner that leakage of battery fluid is not likely to occur under conditions normally incident to transportation; or, (3) the damaged or leaking battery is transported under the provisions of § 173.3(c). Battery fluid that has leaked from the battery, or that has been drained from the battery prior to transportation must be classed, packaged and described as appropriate for the liquid, and may not be transported in the same transport vehicle as batteries shipped under the exception in § 173.159(e). I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, Edward T. Mazzullo Director, Office of Hazardous Materials Standards#

Page 310/2006 10:59 3778 DLAPRGC US LLP PAGE 02/04 Eichenlaub §173.159 Batteries 06 - 0062 DLA PIPER RUDNICK F 202.223.2085 GRAYCARY W www.dlapiper.com 4105803001 March 9, 2006 FACSIMILE AND U.S. MAIL Edward T. Mazzullo, Director Department of Transportation Pipeline and Hazardous Materials Standards Administration Office of Hazardous Materials Standards Room 8421 400 7th Street, S.W. Washington, DC 20590-0001 Re: Transportation of Electric Storage Batteries Dear Mr. Mazzullo: We are writing to request written confirmation of our interpretation of the hazardous material regulations (HMRs) applicable to the transportation of used wet The batteries at issue are typical automobile and equipment batteries which have been electric storage batteries containing electrolyte acid or alkaline corrosive battery fluid. removed from vehicles or equipment and are being shipped by highway for reclamation. interpretations are consistent with 49 C.F.R. § 173.159 and other related provisions of With respect to such shipments, we ask that you please confirm that the following the HMRs: Scenario No. 1: A facility ships (i) used non-spillable wet electric storage batteries that meet all of the conditions set forth in the exception found at 49 C.F.R. § 173.159(d) and (i) used regular wet electric storage batteries (i.e., not "non-spillable") which are loaded and transported in accordance with the conditions set forth in the exception found at 49 C.F.R. § 173.159(e). For efficiency, the used non-spillable and regular batteries are packaging requirements set forth in 49 C.F.R. § 173.159(b) or the authorized non- shipped together in a single package that complies with either the specification specification packaging requirements set forth at 49 C.F.R. § 173:159(c). Serving cllents globally#

Page 403/10/2006 10:59 3778 DLAPRGC US LLP PAGE 03/04 Edward T. Mazzullo, Director March 9, 2006 DLA I PIPER RUDNICK Page 2 GRAYCARY Interpretation: The act of combining the shipment of used non-spillable approved non-specification package, as described above, does not change the applicability of the regulatory exceptions authorized by 49 C.F.R. §§ 173.159(d) or (e). In other words, the shipment of used non- spillable electric storage batteries described above would remain subject to the exception found at 49 C.F.R. § 173.159(d). Likewise, the above would remain subject to the exception found at 49 C.F.R § 173.159(e). Combining the batteries into a single package does not negate either exception so long as the respective conditions for each exception are met. Scenario No. 2. Assume the same facts set forth in Scenario No.1, except that the used regular wet electric storage batteries are not loaded and transported in a manner that complies with 49 C.F.R. § 173.159(e) (e.g., the transport vehicle carries other materials not shipped by the company that is shipping the batteries). regular wet electric storage batteries in a single specification or approved non- Interpretation: The act of combining the shipment of used non-spillable and exception authorized by 49 C.F.R. § 173.159(d) for the non-spillable batteries. specification package does not change the applicability of the regulator Under Scenario No. 2, the concurrent shipment of used regular electric storage batteries remains subject to the HMRs and the shipper will comply with all applicable requirements in the regulations (i.e., shipping paper, marking, labeling). batteries into a single package does not negate the exception for the non- However, combining the regular batteries with the non-spillable spillable batteries found at 49 C.F.R. § 173.159(d) so long as the conditions set forth in that exception are met. Scenario No. 3: Assume the same facts set forth in Scenario No. 1, except that prior to show signs of leakage or potential leakage (e.g., corrosion or damage). The facility shipment the facility inspects the batteries and notes that one or more of the batteries individually packs any damaged or leaking battery into a strong plastic polyethylene battery shipping bag to prevent any release of battery fluid during shipment. The batteries are then packaged along with the rest of the used batteries as described in Scenario No. 1 and shipped by highway for reclamation. Interpretation: The shipment of used regular electric storage batteries described in Scenario 3 remains subject to the regulatory exceptions authorized by 49 C.F.R. §8 173.159(d) and (e). In other words, the act of using secondary 1-6 ~BALT1:4229962.v1 |3/9/06#

Page 503/10/2006 10:59 3778 DLAPRGC US LLP PAGE 04/04 Edward T. Mazzullo, Director March 9, 2006 DLA PIPER RUDNICK Page 3 GRAYCARY preventative packaging on certain batteries that are part of a shipment that is exempt from the HMRs under 49 C.F.R. §§ 173.159(d) or (e) has no bearing on whether either exception applies. * * * * * Please contact me if you have any questions or need additional information. We appreciate any priority that you can give in responding to this request. ery truly you Paul D. Ackerman -BALTI:4229962.v1 13/9/06#