{"operation":"document","citation":"10-0129","title":"Bringham McCuchen LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-07-30","effective_on":null,"summary":"10-0129 response to Bringham McCuchen LLP concerning 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0129.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0129.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0129","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100129.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration\nJUL 30 2010\n1200 New Jersey Ave. SE\nWashington. D.C. 20590\nMr. Robert N. Steinwurtzel\nBingham McCutchen LLP\n2020 K St., NW\nWashington, DC 20006-1806\nRef. No. 10-0129\nDear Mr. Steinwurtzel:\nThis responds to your June 14,2010 letter regarding the transportation requirements for wet\n(electric storage) batteries under the Hazardous Materials Regulations (HMR; 49 CFR Parts\n171-180). You ask for clarification of the requirements for exception from regulation as Class 8\ncorrosive materials for \"wet batteries under § 173.1 59(e) of the HMR. Specifically, you ask for\nclarification ofprocedures that satisfY the requirement of § 173. 159(e)(2) that batteries must be\nloaded or braced to prevent damage and short circuits in transit.\nAccording to your letter, the Battery Council International (BCI) has published procedures on\nhow to package used wet batteries on pallets (see Used Battery Stack and Wrap Flyer available\nat www.batterycouncil.org). The procedures include:\n(1) Pallet specifications (e.g., a maximum ofthree layers of batteries per pallet);\n(2) Instruction to place cardboard (waffieboard) between the pallet and layers of\nbatteries to prevent damage, short circuits, and sliding;\n(3) Instruction to orient battery terminals in such a manner to prevent short circuits; and\n(4) Instruction to stretchwrap the batteries to the pallet to secure the batteries and prevent\nthem from falling offthe pallet.\nAdditionally, you indicate an industry practice of loading a motor vehicle by placing pallets\ntightly against each other front to back and using standard load locks and/or straps at the front\nand rear ofthe load to secure the pallets from shifting forward or rearward on the motor vehicle.\nDepending on the configuration ofthe pallets, there may be void space between the pallets and\nthe walls ofthe motor vehicle trailer. You request clarification that the combination ofthe BCI\npackaging procedures and industry loading practice satisfies the requirement of § 173 .159( e )(2).\nIt is the opinion ofthis Office that the method of loading the wet batteries on a motor vehicle\ndescribed in your letter satisfies the requirement of § 173.1 59(e)(2) so long as no damage or\nshort circuit occurs in transit. However, this requirement is a performance standard, so that if\nthe batteries are capable of shifting to the extent ofcausing damage or short circuit, this method\nofloading would not comply with § 173. 159(e)(2).\n\n<<<PAGE 2>>>\n\nNote that motor carriers may be subject to additional requirements to protect against shifting\nand falling of cargo under the Federal Motor Carrier Safety Regulations in 49 CFR Part 393,\nSubpart 1.\nI hope this information is helpfuL If you have further questions, please contact this office.\nsince:l ~\nharles E. Betts\nief, Standards Development\no ofHazardous Materials Standards\n\n<<<PAGE 3>>>\n\nBINGHAM\nD.er k;()oieref)\n~ 113. ISq\nRobert N. Steinwurtzel\nPhone 202.373.6030 6aW-ev-t'es\nFax 202.373.6001\nRobert.steinwurtzel@bingham.com IO-o,ZCf\nJune 14,2010\nVIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED\nMr. Edward T. Mazzullo\nDirector, Office of Hazardous Materials Standards\nU.S. DOTIPHMSA (PHH-10)\n1200 New Jersey Avenue, SE East Building, 2nd Ploor\nWashington, DC 20590\nRe: Transportation of Wet Batteries Pursuant to\n49 C.P.R.§ 173. I 59(e)(2)\nBoston\nHartford\nHong Kong\nLondon\nlos Angeles\nNew York\nOrange County\nSan Francisco\nSanta Monica\nSilicon Valley\nTokyo\nWashington\nDear Mr. Mazzullo:\nOn behalf of the Association of Battery Recyclers, Inc. (ABR), this letter\nrequests clarification of the requirements for transportation of wet batteries under the\nHazardous Materials Regulations.\nThe ABR represents the lead recycling industry including all the secondary lead\nrefining and smelting capacity in the United States. In addition to secondary lead\nsmelters, ABR members include battery manufacturers and other lead users such as\nsolder and chemical manufacturers. Spent lead-acid batteries represent the principal\nfeedstock for the smelter members; therefore, the application and interpretation of rules\nrelating to the shipment of such batteries is critical to the industry.\nSpecifically, I am writing with respect to the exception found in 49 c.P.R. §\n173 .lS9(e) (2) which states that \"batteries must be loaded 2!..braced so as to prevent\ndamage and short circuits in transit.\" Notwithstanding the clear language ofthe\nexception, we have learned that one state interprets the regulation to require that batteries\nbe loaded and braced. This state requires all voids inside the truck to be filled with\nempty pallets, no matter how well the load of batteries is packaged. Apparently, the state\nis relying upon Interpretation # 0 t-00S4R where it states in part: :'There are a number of\nother loading methods that will satisfy the performance standard, including the use of\nnon-conductive caps that entirely cover the terminals; utilizing card board, paper, wood\nor similar materials to separate the batteries and cover the terminals; the use of friction\nmats or wooden pallets to secure the batteries against movement; or a combination of\nmeasures that will prevent damage and short circuits in transit.\" The ABR understands\nthis interpretation to mean that the use of additional wooden pallets is only one example\nof how batteries can be secured to satisfy the exception. It is also the ABR's\nunderstanding that this interpretation assumes the load is not already packaged so as to\nBingham McCutchen llP\n2020 K Street NW\nWashington. DC\n20006-1806\nT +1.202.373.6000\nF +1.202.373.6001\nbingham.com\n\n<<<PAGE 4>>>\n\nMr. Edward T. Mazzullo\nJune 14,2010\nPage 2\nprevent damage and short circuits in transit and thus would not meet the exception of\n173.159(e).\nThe Battery Council International (BCI), an international trade association that\nrepresents manufacturers of lead-acid batteries, has published instructions on how to\npackage batteries on pallets.\n1. The Department of Transportation (DOT) specifies that junk batteries are\nto be stacked on pallets in good condition. A piece of card board must be placed\non an empty pallet before stacking the first layer of batteries.\n2. A piece of card board must be placed between each layer and on top.\nBatteries should not be stacked over three layers high.\n3. Arrange batteries so that terminals cannot touch and lead to short circuit.\n4. Load batteries two layers high, then shrink wrap. Wrap tightly three to\nfour times around, making sure to catch top of pallet to help anchor load.\n5. Load third layer and place card board on top. Then shrink wrap entire\npackage wrapping tightly an additional three to four times, over lapping bottom\nlayers including the pallet itself.\nBCI submitted the above procedures to your office in a letter dated October 6,\n2009. Your office responded to that correspondence in a letter dated January 10, 2010,\nbut that interpretative letter did not explicitly approve the above procedures. In your\nopinion, does the above method meet the performance standard for securing batteries to\nwooden pallets in order to satisfy the language ofthe exception?\nAfter securing the batteries in the above manner, it is industry practice to place\nthe pallets tightly against each other, and then use standard load locks and or straps at the\nfront and rear of the load to secure pallets from shifting forward or rearward. That is, if\nthe batteries are loaded to avoid damage during transit or short circuit, then there is no\nobligation to place wooden pallets to fill the voids that could exist between the loads or\nmay otherwise exist inside the truck. In your opinion does this load meet the\nperformance standard to satisfy the exception of Section 173.159 (e)?\nYour immediate response to this inquiry is greatly appreciated. ainCere,y,\n·41.~~\"'\"I---\nCounsel to the Association of\nBattery Recyclers, Inc.\ncc: ABR Board of Directors\nBingham McCutchen llP\nbingham.com\nN73402969.2","truncated":false,"body_characters":7988}