{"operation":"document","citation":"11-0136","title":"Recology San Francisco — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-08-03","effective_on":null,"summary":"11-0136 response to Recology San Francisco concerning 171.1, 173.12.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0136.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0136.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0136","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110136.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Avenue SE\nU.S. Department Washlngtoll. DC 20590\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration \n AUG 0 320U\nMr. Billy Puk\nHHWCF & Operation Manager\nRecology San Francisco\n501 Tunnel Avenue\nSan Francisco, CA 94134\nRef. No.: 11-0136\nDear Mr. Puk:\nThis responds to your June 9, 2011 letter regarding the requirements under the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the transportation of\nhousehold hazardous wastes, specifically aerial marine flares. You state that your\norganization, the Household Hazardous Waste Collection Facility for San Francisco,\nCalifornia, regularly collects unwanted and expired aerial marine flares from the general\npublic in order to properly treat and dispose ofthem. Further, you cite an interpretation\nletter (09-0289) PHMSA previously issued which discussed household hazardous waste\ntransported by a municipal government agency using either its own employees or\nindependent contractors employed by the municipal government agency, and the applicable\nrequirements ofthe HMR. Specifically, you ask whether the transportation of a consolidated\nhousehold hazardous waste shipment of aerial marine flares from a collection center by a\nthird party to a treatment, storage, and disposal facility (TSDF) for a final disposal is\nexcepted from the HMR.\nThe answer is no. The exception provided in § 173.12(g) does not apply to the\ntransportation of a consolidated household hazardous waste shipment from a collection\ncenter by a commercial carrier to a TSDF. However, the transportation ofconsolidated\nhousehold hazardous waste by a government employee from the collection center to a TSDF,\nsolely for noncommercial government purposes, is not \"commercial\" transportation for\npurposes of the HMR and, therefore, is not subject to regulation under the HMR (see\n§ 171.1(d)(5».\nI hope this satisfies your inquiry. Please contact us if we can be of further assistance.\nsincerelY'~ ~'--- __\n~d~er .\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nQrakeford, Carolyn (PHMSA)\nFrom: Betts. Charles (PHMSA)\nSent: Wednesday. June OS, 2011 5:12 PM\nTo: Drakeford. Carolyn (PHMSA)\nSubject: FW: Request: waste Aerial I Marine Flares HMR transportation interpretation letter\nFrom: Billy Puk [mailto:cpuk@recology.com]\nSent: Wednesday, June 08, 2011 4:37 PM\nTo: Betts, Charles (PHIVJSA)\nCc: Lynch, Robert (PHMSA); 'Vivian Matuk'; Antonia Becker; Martyn.Rich@epamail.epa.gov\nSubject: Request: waste Aerial/ Marine Flares HMR transportation interpretation letter\nImportance: High\nDear Mr. Charles Betts:\nMy name is Billy Puk. I am the Household Hazardous Waste (HHW) Collection Facility (HHWCF) and Operation Manager\nat Recology San Francisco. Recology San Francisco operates the Municipal Solid Waste Transfer Station and Permanent\nHHWCF in San Francisco, CA. Along with several interested parties focusing on the growing issue of proper disposal on\nunwanted or expired aerial/marine flares, I request your expertise to interpret or resolve our current obstacle on the\nsafe transportation of such flares under the current federal hazardous material transportation (HMR) rules. By using the\nword \"unwanted\" in this context, the flares are still functional and non-expired, but the generator/owner just does not\nwant them and declares the flares as waste.\nThe CA Department of Toxic Substances Control (DTSC), California Department of Boating and Waterways, CalRecycle,\nCaIEMA, California State Coastal Commission, and Household Hazardous Waste Program folks in CA started a working\ngroup to find a solution for proper disposal of unwanted or expired aerial/marine flares. Primarily, the flares are\ngenerated from the recreational boaters (including residents permanently living on the boat) and small business\nfishermen (under the exemption of 40 CFR 261.5 as a Conditionally Exempted Small Quantity Generator, CESQG). In\nCalifornia, such CESQG waste generation is under the umbrella of HHW. The condition of the unwanted or expired flares\nis usually intact. Rarely, we would receive some deteriorated flares due to weathering or other reasons. In our HHWCF\nsettings, we know that we can collect the flares as HHW, but we have a problem of sending them to a treatment,\nstorage, and disposal facility (TSDF) for a final disposal due to DOT requirement on either flare types as explosive (1.2,\n1.3, or 1.4). These disposal facilities are outside of California (lL, LA and TX).\nI personally phoned several times to US Coast Guard (USCG), which requires and enforces boaters to carry aerial/marine\nflares on board for an emergency situation and decommissions the expired ones, to discuss issue on the proper disposal\nof unwanted or expired flares. While I had not revealed myself as a HHW facility manager but a responsible citizen,\nnone of the USCG representatives on the phone could provide me a clear answer. Simply, all USCG representatives\nreferred me to the local police or fire departments for proper disposal option. Repeatedly, I then tried both police\n(including Bomb Squad) and fire departments both in the City and County of San Francisco and California State\ncounterparts (i.e. CA Highway Patrol and CA State Fire Marshall) as a private citizen. No agency could provide me a\ndefinite disposal option but referring back to USCG for proper disposal. As such situation goes round and round with no\nclear direction, an average generator would directly dispose the unwanted or expired aerial/marine flares through\nwaterway or solid waste (trash) channel. If the unwanted or expired flares ended up in the trash, the flares would be\nsent to landfill and could create any unpredictable consequences as a result of reacting with other landfilled wastes. If\nthe flares were thrown into our waterway, the chemical constituents of the flares would slowly degrade over time and\nhave negatively impacted in our ecosystem and damaged the marine lives. Therefore, HHWCF's in CA are trying to help\nsuch boaters to minimize such negatively environmental impact.\n1\n\n<<<PAGE 3>>>\n\nRecently. the HHW collection program has already given approval by OOT-PHMSA in an interpretation letter (click here;\n~HMSA Interpretation # 09-0289 dated on February 5, 2010) to be exempted in the HMR, including both private (must\nbe a contractor employed by the corresponding public entity) and public entities, to run the Door-to-Ooor HHW\nCollection Program. Can such exemption specified in this interpretation letter extend to a third party carrier\ntransporting solely household generated (by definition mentioned above) waste aerial/marine flares between HHWCF\nand final treatment, storage and disposal facility (TSDF) across the country, please? When none of the closest TSDF is\npermitted to manage the unwanted or expired flares through incineration, we would have to send the flares to Colfax,\nLA, which travels almost half of the country from California!\nGiven the final disposal sites are far away from California and the current economically constraining situation in both\npublic and private sectors nationwide, a change in the mode of transportation (change from a ~OT classified hazardous\nmaterial, i.e. explosive, to a non-hazardous material) would drastically change the cost of transportation, if DOT can\nuphold the definition of \"household waste\" on aerial/marine flares, specifically generated from recreational boaters and\nCESQG, to be exempted. In other words, when DOT allows individual boater, including both commercial and\nrecreational, carry such explosive in the US water without placarding as hazardous material regardless of the amount of\nexplosive material in each flare, when USCG, instead of DOT-PHMSA, enforces 33 CFR 175.101- 175.140, should such\nexemption extend to the end-of-life management and transportation between HHWCF and TSDF to prevent any\nnegative impact to our environment?\nOr can aerial/marine flares reclassify from explosive (1.2, 1.3 or 1.4) to oxidizer (5.1) like uranium nitrate was delisted\nfrom radioactive (7) to non-hazardous back in 2004, please? Currently, the main hazardous material constituents in\nsuch flares are black powder (1.1 0 or 4.1, if for small arms and US only), magnesium (4.1 or 4;3, if powder form),\npotassium perchlorate (5.1), potassium chlorate (5.1), strontium nitrate (5.1) and strontium peroxide (5.1). The only\nconcern is the black powder in the aerial/marine flares. When the size of a small arm is about the size of such flare, I\nwould expect that each flare has the similar amount of black powder as found in the small arm to create the same effect\nin firing the marine signals in an emergency situation in the water. Since black powder can be classified as 4.1 for small\narms and transported domestically only, would DOT still concern the amount of black powder in each flare to be\nsignificantly triggering an explosion during transportation?\nIf none of my suggestion/comment satisfies HMR exemption, how would DOT-PHMSA suggest our HHWCF's to send the\ncollected waste aerial/marine flares between HHWCF and TSDF under the current HMR that is economically sounded?\nI am looking forward to your response in DOT-PHMSA interpretation letter. Thank you very much.\nSincerely yours,\nBilly Puk\nHHWCF & Operation Manager\nRecolo9yTl'4 San Francisco\nW.ASTE :ZERO\n501 Tunnel Avenue, San Francisco, CA 94134\n415-657-4030\ncpuk@recology.com\nPS: Since the 2013 America's Cup will be hosted in San Francisco, CA, USCG may have to start the enforcement of\ncarrying non-expired, functional flares on boats soon. We, HHWCF folks, will then expect the increase of collection and\ndisposal request of the aerial/marine flares from the boaters. Therefore, DOT-PHMSA's response is highly important to\nour HHWCF operations in the City and County of San Francisco and surrounding Bay Area's jurisdictions.\ncc: Vivian Matuk, CA Department of Boating & Waterways & CA Coastal Commission\nAntonia Becker, CA Department of Toxic Substances Control\nRich Martyn, US Environmental Protection Agency\nRobert Lynch, US Department of Transportation\n2\n\n<<<PAGE 4>>>\n\nFrom: robert.lynch@dot.gov [mailto:robert.lynch@dot.gov]\nSent: Thursday, May 12, 2011 4:38 PM\nTo: Billy Puk\nSubject: RE: Aerial/Marine Flares\nYes, I should be available on May 23rd\n,\nWhat you need to do is to submit your request in writing with any supporting materials to our Office of Hazardous\nMaterials Standards and they will respond back to you in writing. You can use the explanation in your email that you\n'sent to Dan Derwey on April 27th 2011. You may email your request directly to Mr. Charles Betts. His email is:\ncharles.betts@dot.gov\nI have already communicated with Mr. Betts. When he receives your email he will direct it to one of his staff for your\nreply in writing.\nWhen you return from vacation send me an email and we can talk if you like.\nJust for my information are these flares that are collected in good shape, bad shape, damaged or out lived their\nexpiration dates ( I don't know if flares have expiration dates, just thought I would asked)\nUntil you return enjoy the rest of your vacation.\nBob Lynch\nSenior Compliance Investigator\nUS DOT/PHMSA/Field Operations\nrobert.lynch@dot.gov\nFrom: Billy Puk [mailto:cpuk@recology.com]\nSent: Thursday, May 12, 2011 6:39 PM\nTo: Lynch, Robert (PHMSA)\nSubject: Re: Aerial/Marine Flares\nHi Robert,\nHow are you? I am sorry that I am on vacation currently. I won't be able to discuss with you until my return of work on May\n23, 2011. Are you available by then?\nBilly\nFrom: robert.lynch@dot.gov <robert.lynch@dot.gov>\nTo: Billy Puk\nSent: Thu May 12 12:14:482011\nSubject: Aerial/Marine Flares\nGood afternoon Mr. Puk,\nI tried calling you early today and got your answering service. It's in regards to your question on the aerial/marine\nflares. I was contacted by Dan Derwey.\nRobert Lynch\nU.S. DOT/PHMSA/Field Operations\nrobert.lynch@dot.gov\n(202) 366-6502\n3","truncated":false,"body_characters":11941}