Wiley Rein LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Deportment of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, DC 20590 NOV 2 5 2009 Mr. George Kerchner Wiley Rein LLP 1776 K Street NW Washington, DC 20006 Ref. No. 09-0150R Dear Mr. Kerchner: Recently, our Office issued several letters, including our August 13, 2009 letter (Ref. No. 090150) responding to your request, regarding the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the transport of used or spent dry cell batteries. This letter supersedes the response given in our August 13, 2009 letter. After further consideration and analysis ofdry battery chemistries and sizes and based on information available to us, it is the opinion ofthis Office that used or spent dry. sealed batteries of both non-rechargeable and rechargeable designs, described as "Batteries, dry, sealed, n.o.s." in the Hazardous Materials Table in § 172.101 of the HMR and not specifically covered by another proper shipping name, with a marked rating up to 9-volt are not likely to generate a dangerous quantity ofheat, short circuit, or create sparks in transportation. Therefore, used or spent batteries ofthe type "Batteries, dry, sealed, n.o.s." with a marked rating of 9-volt or less that are combined in the same package and transported by highway or rail forrecycling, reconditioning, or disposal are not subject to the HMR. Note that batteries utilizing different chemistries (i.e., those battery chemistries specifically covered by another proper shipping name) as well as dry, sealed batteries with a marked rating greater than 9-volt may not be combined with used or spent batteries of the type "Batteries, dry, sealed, n.o.s." in the same package. Note also, that the clarification provided in this letter does not apply to batteries that have been reconditioned for reuse. I hope this information is helpful. If you have further questions, please contact this office. Sincerely, 4l~61u& Charles E. Betts, . ef, Standards Development Office of Hazardous Materials Standards#

Page 21776 K STREET NW WASHINGTON, DC 20006 PHONE 202.719.7000 FAX 202.719.7049 7925 JONES BRANCH DRIVE McLEAN, VA 22102 PHONE 703.905.2800 FAX 703.905.2820 George Kerchner May 6, 2009 202.719.4109 gkerchner@wileyrein.com www.wileyrein.com Ms. Susan Gorsky Pipeline and Hazardous Materials Safety Administration United States Department ofTransportation 1200 New Jersey Avenue SE, second floor Washington, D.C. 20590-0001 Re: Request for Interpretation on Shipping Spent Batteries for Recycling Dear Ms. Gorsky: I am writing to request the U.S. Department of Transportation's (DOT) interpretation on the requirements of 49 CFR §172.102, Special Provisions 130, 188 and 189 as they apply to shipments of spent (used) "dry cell" batteries (e.g., alkaline) and lithium/lithium ion batteries that are being transported for recycling. Background We are aware of several counties that operate spent battery collection and recycling programs, some of which have been operating for nearly twenty years. One particular county has collected 4.8 million pounds of batteries since 1990 from about 130 host sites dispersed throughout the County. This particular program has not had a transportation incident where batteries caused a fire, violent rupture, explosion or dangerous evolution of heat. Many of these counties have the same logistics arrangements. For example, host sites include such places as public libraries, retail stores and city halls where people drop off used batteries of all types into large plastic containers. When containers are nearly full, the county's contractor picks up the batteries using a county vehicle, and transports them within the same day to the contractor's sorting and packaging facility. The containers of mixed batteries can weigh about 150-200 pounds each. After the batteries arrive at a contractor's facility, the contractor sorts the batteries by chemistry and packages them for transport. The purpose ofsorting and packaging is three-fold: first to consolidate the batteries into fewer shipments; second to meet the specifications of the recycling or disposal facilities; and third to prevent the dangerous evolution of heat. Specifically, the terminals of lithium and lithium-ion batteries are taped then placed into plastic-lined, sealed drums. Other batteries are sorted by type and placed directly into plastic-lined, sealed steel drums.#

Page 3May 6, 2009 Page 2 When a truckload of batteries has accumulated at a contractor's facility, the county arranges for ground shipment of the drums by a hazardous waste transporter to recycling, metal recovery, or other management facilities. For reference, the table below lists the weight, in pounds of batteries shipped to disposal facilities in one particular county in 2008. As noted, over 80% of the batteries col1ected are alkaline and zinc carbon. The attached Exhibit A provides additional data on the types and weights (in pounds) of batteries collected by one county from 1999 to 2007 Request for Interpretation There are several issues that require clarification from DOT that may significantly impact county battery collection programs. First, in the situation described above, a county contracts with a company to have its employees drive County vehicles to pick up and transport containers of spent batteries from public facilities and retail stores. We do not believe these shipments are "in commerce" and subject to the U.S. hazardous materials regulations (HMR) because they are being transported in county vehicles for noncommercial, local government purposes. Therefore, we would like confirmation from your office that these shipments are not subject to the HMR. Second, as noted above, over 80% ofthe spent batteries collected by counties are alkaline and zinc carbon. When new, these batteries have a low voltage (no more#

Page 4May 6, 2009 Page 3 than 1.5 V) and present a very low risk in transportation. When spent, these batteries have very little electrical potential and therefore present even less of a risk in transportation. We believe that when spent alkaline and zinc carbon batteries are sorted from other battery chemistries and placed into plastic-lined, sealed 55-gallon drums, it meets the requirement of Special Provision 130. That is, the sorted spent batteries have been prepared and packaged for transport in a manner to prevent a dangerous evolution of heat and short circuits. Therefore, we would like confirmation from your office that this sorting and packaging procedure for spent alkaline batteries meets the requirements of Special Provision 130. * * * * * We would appreciate your immediate attention to this request for interpretation since it has significant implications on many county-operated battery collection and recycling programs throughout the U.S. Thank you for your assistance. Sincerely, George A. Kerchner#

Page 5Table 3 Temp 75 76 '"1-, 78 77 II cell 2 Temp 75 76 78 77 cell} Temp 76 75 78 77 78 cell 4 l'cmp 75 78 77 7& 77 ceil 5 75 79 78 78 78 Closed circuit#

Page 6"remp 76 77 78 77 77 ceUZ Temp 77 76 76 77 78 cell :3 Temp 71 77 77 78 78 ceU4 76 78 7& 77 76 eel! ,5 cello cell 7 celiS ceH9 cell 10 cell I I Temp 78 gO 78 75 7~ .) Temp 78 78 77 76 77 Te.mp 75 77 78 77 77 TCi11p 76 77 77 78 76 Temp 77 78 76 76 75 Temp 75 76 77 76 77 78 78 77 77 77#

Page 7The 9 volt batteries were connected positive to neg~tive, Even with a volt circuit the batteries were not noticeable warm 10 the touch evenwhcn securely locked into each other.#

Page 9Santong stand#

Page 10EXHIBIT A ln/Carbon NtCad 14,361 115 10,154 15,740 .--~-. Mixed Button 798 691 Mercury 1,619 62 hium 2,000 2.842 3,007 2,779 1,503 ~,,..-~-~. hium Ion 372 2,749 Lead Add Gel Cells 14,884 14,891 i 11,647 13,877 I 17,558 I 17,398 14,000 I 14,000 12,000#