{"operation":"document","citation":"12-0004","title":"Regulatory Resources, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-05-16","effective_on":null,"summary":"12-0004 response to Regulatory Resources, Inc. concerning 172.316, 173.24a, 173.306.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0004","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2012/120004.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMAY 1 6 21H2\nMr. Wade Winters\nRegulatory Resources, Inc.\n167 Keen Road\nRichland, W A 99352\nReference No.: 12-0004\nDear Mr. Winters:\nThis responds to your January 2, 2012 letter regarding the requirements for limited\nquantities of compressed gases under the Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180). Specifically, you seek clarification on the requirements and applicable\nexceptions for aerosols transported for disposal. Your statements and questions are\nparaphrased and addressed below.\nThe exceptions for limited quantities of compressed gases (including in aerosol containers)\nare specified in § 173.306 of the HMR. You note in your incoming letter that Department of\nTransportation (DOT) Special Permit (SP) 12842 was incorporated into the HMR in a final\nrule under Docket Number PHMSA-2009-0289 (HM-233A), entitled \"Incorporation of\nSpecial Permits Into Regulations,\" and published in the Federal Register on May 14, 2010\n[75 FR 27205]. Under DOT-SP 12842, PHMSA authorized the transport of limited\nquantities of certain Division 2.1 (flammable) and Division 2.2 (non-flammable) gases in\naerosol containers packaged in strong outer packagings with gross weights of up to 500 kg\n( 1,100 pounds). The Pipeline and Hazardous Materials Safety Administration (PHMSA)\nallowed the increase in gross weight for the purpose of packaging discarded empty, partially\nused, and full aerosol containers to be transported to a recycling or disposal facility. In HM-\n233A, PHMSA added a new paragraph (k) to§ 173.306 incorporating specific provisions\nfrom DOT -SP 12842 into the exceptions for limited quantities of compressed gases.\nQ 1: It is your understanding that aerosols shipped for disposal or recycling in compliance\nwith § 173.306(k) are permitted the same exceptions (i.e. the marking and labeling\nrequirements of Part 172 Subparts D and E respectively, and shipping paper\nrequirements, unless it is a hazardous waste or hazardous substance, of 172 Subpart\nC) granted under §§ 173.306(i) and 173.156(b) without being reclassified as an\nORM-D material. You state that under SP 12842, aerosols shipped for disposal or\nrecycling were excepted from the marking and labeling and shipping paper\nrequirements, unless a hazardous waste or hazardous substance without being\nreclassified as an ORM-D material. You seek confirmation from PHMSA that your\nunderstanding is correct.\n\n<<<PAGE 2>>>\n\nA 1: 02: A2: Your understanding is correct, provided the aerosols shipped for recycling or\ndisposal meet all the requirements of§ 173.306(k) and contain a limited quantity that\nconforms to the provisions of paragraph (a)(3), (a)(5), (b)(1), (b)(2), or (b)(3) of\n§ 173.306. SP 12842 permitted aerosols not meeting the weight limitations for an\nORM-D shipment to be transported as an ORM-D without requiring the package to\nbe marked as an ORM-D, under specific conditions including, but not limited to,\nlimiting the strong outer packaging and its contents to a gross weight of not more\nthan 500 kg (1,100 pounds) and requiring each aerosol container to be secured with a\ncap to protect the valve stem or to have the valve stem removed. Under this special\npermit, these shipments would be eligible for the same exceptions provided for\nORM-D materials.\nThe intention of HM-233A was to incorporate SP 12842 into the HMR as the special\npermit was designed to be used. Therefore, aerosols shipped for recycling or\ndisposal containing a limited quantity which conforms to the provisions of paragraph\n(a)(3), (a)(5), (b)(l), (b)(2), or (b)(3) of§ 173.306 are not subject to the 30 kg (66\npounds) gross weight limitation when transported by motor vehicle under the\nspecific conditions provided in§ 173.306(k) and are afforded the applicable\nexceptions provided for ORM-D materials (including the marking and labeling\nrequirements of Part 172 Subparts D and E respectively, and shipping paper\nrequirements, unless it is a hazardous waste or hazardous substance, of 172 Subpart\nC for ground transport) granted under§§ 173.306(i) and 173.156(b).\nIt should also be noted that while the words \"ORM-D\" or \"Consumer Commodity\"\nneed not be marked on packages in compliance with § 173.306(k), the language\n\"INSIDE CONTAINERS COMPLY WITH PRESCRIBED REGULATIONS\" is\nrequired for shipments of aerosols shipped for disposal or recycling in compliance\nwith paragraphs (a)(3), (a)(5), or (b)(l) of§ 173.306.\nWe intend to clarify this exception in a future rulemaking.\nIt is your understanding that the limited quantity marking specified in § 172.315 is\nnot required on aerosols shipped in accordance with§ 173.306(k). You seek\nconfirmation from PHMSA that your understanding is correct.\nYou understanding is not correct. Packages containing aerosols meeting the limited\nquantity requirements of§ 173.306(k) and subsequently the provisions of paragraph\n(a)(3), (a)(5), (b)(l), (b)(2), or (b)(3) of§ 173.306 must be marked in accordance\nwith § 172.315(a) or (b), as appropriate. However, until December 31, 2012, a\nlimited quantity package meeting the requirements of§ 173.306(i) and containing a\n\"Consumer Commodity\" may be renamed ·'Consumer Commodity\"' and reclassed as\nORM-D or ORM-D-AIR material and offered for transportation and transported in\naccordance with the marking requirements specified in § 172.316 in effect on\nOctober 1, 2010.\n\n<<<PAGE 3>>>\n\nQ3: A3: You seek clarification on the application of§ 173.24a( c) to aerosols shipped under\n§ 173.306(k) and the appropriate shipping description for these mixed content\npackages. You note that normal waste operations collect aerosols into a single\ncontainer without regard to the flammable or non-flammable nature of the aerosol.\nWhen both Division 2.1 and 2.2 aerosols are reclassified to ORM-D the shipper is\nauthorized to rename them as \"Consumer Commodity.\" It is your understanding that\nthis allowance, in essence, removes the mixed aerosols from being subject to\n§ 173.24a(c) and simplifies the shipping description. You seek confirmation from\nPHMSA that your understanding is correct.\nYour understanding is not entirely correct. Provided the aerosols meet all the\nrequirements of § 173.306(k), contain a limited quantity that conforms to the\nprovisions of paragraph (a)(3), (a)(5), (b)(1), (b)(2), or (b)(3) of§ 173.306, and meet\nthe Consumer Commodity requirements specified in § 173.306(i), the aerosols may\nbe reclassified as a \"Consumer Commodity.\" In this scenario, for ground transport, a\nshipping paper is not required. However, until December 31, 2013, the package may\nbe marked on at least one side or end with the ORM-D designation immediately\nfollowing or below the proper shipping name of the material, in this case \"Consumer\nCommodity\" as specified in§ 172.316 or with just the limited quantity marking\ncurrently specified in§ 172.315. After December 31,2013, the proper shipping\nname will not be required on the outside of the package.\nIf a mixed shipment of Division 2.1 and 2.2 aerosols shipped for disposal or\nrecycling under § 173.306(k) does not meet the Consumer Commodity requirements\nin § 173.306(i), the shipping description on the outside of the packaging may bear\neither the proper shipping names for both the Division 2.1 and 2.2 materials with the\nmarking requirements specified in § 172.315 in effect on October 1, 2010, or the\nlimited quantity marking and the proper shipping names if transported by airl as\ncurrently specified in§ 172.315. Please note that for surface transport, only the\nlimited quantity marking and not the proper shipping name is required as currently\nspecified in§ 172.315. After December 31, 2013, the requirements specified in\n§ 172.315 in effect on October 1, 2010 will no longer be authorized.\n· Finally, you ask PHMSA to permit the marking of a single description based on the Division\n2.1 hazard on a package containing both Division 2.1 and 2.2 aerosols. You note a similar\nhazard communication is permitted for placarding in § 173.504(t)(3) when both Division 2.1\nand 2.2 gases are present. You also note that all aerosols share a single Identification\nNumber, UN1950, and except for Aerosols, flammable, n.o.s. (Division 2.1), all aerosols\nshare the same proper shipping name. You do not believe permitting a single description\nbased on the Division 2.1 hazard on a package containing both Division 2.1 and 2.2 aerosols\nwill adversely affect safety in transportation since mixed waste aerosols reclassified as\nORM-D have been safely transported as Consumer Commodities for many years.\n\n<<<PAGE 4>>>\n\nWe appreciate your bringing this issue to our attention. PHMSA cannot make regulatory\nchanges through a request for interpretation of the HMR. However, if you believe a\nrulemaking change is warranted, we invite you to file a petition for rulemaking in\naccordance with§ 106.95 including all information (see § 106.100) needed to support your\npetition.\nI hope this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 5>>>\n\nBet1ed tct-\n~ 115. 30b (!<.)\n~ 113. 15~\n~ 112., 161\n\"\" J 1 ~a b; 1 ,·fi\n167 Keene Road\nRichland, WA 99352\nVoice: 509-628-1020\nFax: 509-628-0972\ninfo@regulatoryresources.net\nwww.regulatoryresources.net\nJanuary 2, 2012\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nMr. Charles E. Betts\nDirector, Office of Hazardous Materials Standards\nU.S. DOT/PHMSA (PHH-10)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nDear Mr. Betts,\nOn May 14, 2010, Special Permit (SP) 12842 was adopted into regulations at §173.306(k).1 This SP allowed\nthe transport in commerce of certain Division 2.1 and Division 2.2 materials in aerosol cans under\n§173.306(h) (now paragraph (i)) and §173.156(b) even though the aerosol can did not meet the definition of\nan ORM-D material. The referenced regulations allowed these aerosol cans to be excepted from all marking\nand labeling requirements of Part 172 Subparts D and E respectively, and shipping paper requirements\n(unless a hazardous waste or hazardous substance) of 172 Subpart C. Furthermore, the outer packaging\nmarking \"INSIDE CONTAINERS COMPLY WITH PRESCRIBED REGULATIONS\" was excepted as well as the 30 kg\ngross weight package limitation. Two stipulations were mandated, however, by the SP: (1) a strong outer\npackaging was required (normally excepted under §173.156(b)); and (2) each aerosol can had to be\npackaged with a protective cap secured or the valve stem removed.\nThe adoption of this SPinto the Hazardous Materials Regulations (HMR) was due to the safety record over\nthe years and the limiting conditions under which the SP could be used. As stated in the final rule:\n\"Based on the safe record of transportation of these aerosol containers under this special permit;\nand based on the condition that some limited quantity materials reclassed as ORM-0 material, as\nauthorized under §173.306, are not subject to the 30 kg (66 pound) gross weight limitation when\nunitized in packages and offered for transportation in accordance with §173.156 of the HMR, in\nthe December 2009 NPRM, PHMSA proposed, in §173.306(k), to authorize the highway transport\nof aerosol containers conforming to §173.306 in strong outer packagings not to exceed 500 kg\n(1,100 pounds) when transported for the purpose of recycling or disposal.\"\nThe new text of §173.306(k) fails to accurately identify the exemptions granted by SP 12842. As written, the\nshipper is not excepted from any marking, labeling, shipping paper, or placarding requirements of Part 172.\nIn addition, the shipper must mark the outer package, INSIDE CONTAINERS COMPLY WITH PRESCRIBED\nREGULATIONS\" as specified when meeting §173.306(a)(3).\nRegulatory Resources, Inc. is seeking confirmation that, although not clearly indicated in the new\n§173.306(k) text, aerosol cans shipped for disposal or recycling in compliance with §173.306(k) are allowed\nthe exceptions granted under §173.306(i) and §173.156(b) as was prescribed under SP 12842. Furthermore,\ngiven the historical exceptions granted for these aerosol cans and the exceptions granted under SP 12842,\nRRI is seeking confirmation that the limited quantity marking of §172.315 is not required for aerosols cans\nshipped in accordance with §173.306(k).\n1\n75 FR 27205 (HM-233A)\n\n<<<PAGE 6>>>\n\nRegulatory Resources, Inc.\n167 Keene Road\nRichland, WA 99352\nVoice: 509-628-1020 I Fax: -0972\ninfo@regulatoryresources.net\nwww.regulatoryresources.net\nRRI is also seeking PHMSA's opinion on the application of §173.24a(c) to aerosol cans shipped under\n§173.306(k) and the shipping description for these mixed content packages. Unless treated onsite to some\n·degree, normal waste operations collect aerosols into a single container without regard to their flammable\nor non-flammable nature. When both Division 2.1 and 2.2 aerosols are relcassed to ORM-D the shipper is\nauthorized to rename them as \"Consumer Commodity\". This allowance, in essence, removes the mixed\naerosol cans from being subject to §173.24a(c) and simplifies the shipping description. This reclassing and\nrenaming is not specified under the new §173.306(k). RRI would like PHMSA to allow the description of a\npackage mix of Division 2.1 and 2.2 aerosol cans be described using a single description based on the\nDivision 2.1 hazard. A similar hazard communication is allowed for placarding in §173.504(f)(3) when both\nDivision 2.1 and 2.2 gases are present. We seek this concurrence because all aerosols share a single\nIdentification Number, UN1950, and except for Aerosols, flammable, nos (Division 2.1), all other aerosol\ncans share the same proper shipping name. Naturally, if an aerosol(s) with a subhazard is present the\nsubhazard would have to be identified as required in §172.202(a)(3). RRI does not believe allowing this will\naggravate or lessen emergency response nor adversely affect safety in transportation since mixed waste\naerosol cans reclassed to ORM-D have been safely transported as Consumer Commodities for many years.\nThank you in advanced for your timely reply.\nFor Regulatory Resources, Inc.,\nW. A. Winters, CET, CHMM\nPresident\nWAW/Iom","truncated":false,"body_characters":14345}