{"operation":"document","citation":"12-0155","title":"Scopelitis, Garvin, Light, Hanson & Fears — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-10-25","effective_on":null,"summary":"12-0155 response to Scopelitis, Garvin, Light, Hanson & Fears concerning 171.1, 171.8, 173.3.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0155.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0155.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0155","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2012/120155.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\ni 200 New Jersey Avenue SE\nWashington. DC 20590\nOCT 2 5 2012\nTimothy W. Wiseman, Esq.\nJeffreyS. Jackson, Esq.\nScopelitis, Garvin, Light, Hanson & Fears\n10 West Market Street\nSuite 1500\nIndianapolis, IN 46204\nReference No. 12-0155\nDear Messrs. Wiseman and Jackson:\nThis is in response to your July 13, 2012 letter concerning the transportation of a\nhazardous material in a package discovered to be damaged, defective, or leaking at some\npoint while it is in possession of a common carrier by highway (i.e., after the carrier picks\nup the package from the offeror and before delivering it to the consignee). As we\nunderstand the circumstances, when the motor carrier discovers that the package is\ndamaged, defective or leaking (presumably this would occur most often at the carrier's\n\"local terminal\"), the carrier:\n• Places the damaged, defective, or leaking packaged in a salvage drum so that the\npackage may be \"shipped for repackaging or disposal\" in accordance with 49\nC.F.R. § 173.3(c).\n• Transports the salvage drum and its contents from its local terminal to its \"larger\nhub\" facility where the damaged, defective, or leaking package and its contents are\nevaluated to determine if the material or product is suitable for recycling, 1 donation,\nor disposal.\n• \"[U]tilizes a licensed hazwaste transporter and follows applicable state hazardous\nwaste law\" when damaged, defective, or leaking \"packages must be disposed of\nfrom the hub as hazwaste.\"\nSpecifically, you ask us to comment on whether \"the carrier opens itself up to the state's\nhazwaste regulations during the brief period in which it takes steps at its local terminal to\nutilize the [salvage] drum for continued transportation to the hub.\" You state that a local\nmunicipality takes the position that \"the transportation of the shipment actually stops at the\nlocal terminal,\" and the package and its transportation are therefore no longer governed by\nthe HMR. Instead, according to the municipality, the carrier actually holds the package at\n1 We assume that, under the appropriate circumstances, \"recycling\" may include returning the package to\nthe original offeror or delivering it to the intended consignee.\n\n<<<PAGE 2>>>\n\nthe local terminal for management as hazwaste and, because transportation of the shipment\nhas purportedly stopped, opens itself up to the application of state and local hazwaste\nregulations at its local terminal (e.g., those requiring hazwaste generator permits for each\nlocal terminal, those requiring the manifesting and transportation of the damaged hazmat\npackages from each local terminal as hazwaste by a licensed hazwaste transporter, etc.).\nWe do not agree that under these circumstances, \"transportation\" stops at the carrier's local\nterminal or that the HMR no longer applies to any further movement of the damaged,\ndefective or leaking package or preparation of the package for such further movement. As\ndefined in 49 C.F.R. § 51 02(13), \"'transportation' means the movement of property and\nloading, unloading, or storage incidental to the movement.\" (Emphasis supplied) Between\nthe carrier's local terminal and its larger hub facility at which the package and its contents\nare evaluated, the package would clearly be in \"movement.\"\nAs you describe the situation, the shipment was not consigned to the local terminal or any\nother facility of the carrier. The package it is still in the possession of the carrier, and it\nhas not been \"delivered to the destination indicated on a shipping document, package\nmarking, or other medium.\" See 49 C.F.R. § 171.1(c) including 171.1(c)(4) (storage\nincidental to movement). The carrier may become an \"offeror\" by performing pre-\ntransportation functions to enable onward transportation of the package (for example, by\nrepackaging the hazardous material and preparing shipping papers, which may include a\nuniform hazardous waste manifest). See 49 C.F.R. §§ 171.8 (definition of \"person who\noffers\" or \"offeror\") and 173.3( c). However, that would not mean that movement of the\npackage from the local terminal to the hub is no longer \"transportation\" and not subject to\nthe requirements in the HMR.\nThe authority of a State or local municipality to regulate transportation of hazardous waste\nis not completely precluded by a finding that the transportation and/or pre-transportation\nfunctions are subject to the HMR. Rather, the Resource Conservation and Recovery Act\nprovides that regulations of the U.S. Environmental Protection Agency (EPA) applicable to\ntransporters of hazardous waste must be \"consistent with\" the HMR, and State hazardous\nwaste programs must be \"equivalent to\" and \"consistent with\" EPA's program. 42 U.S.C.\n§§ 6923(b), 6926(b). See the discussion in Preemption Determination No. 12(R), New\nYork Department of Environmental Conservation; Requirements on the Transfer and\nStorage of Hazardous Wastes, 60 Fed. Reg. 62527, 62533 (Dec. 6, 1995), decision on\npetition for reconsideration, 62 Fed. Reg. 15970 (Apr. 3, 1997), regarding \"repackaging\"\nofhazardous wastes at a carrier's \"transfer facility.\" As noted in that decision, EPA's\nauthorization of a State program does not \"shield[] state regulations touching upon\nhazardous material transport from possible preemption challenges under\" Federal\nhazardous material transportation law. !d., quoting from the August 17, 1994 letter signed\nby the Director ofEPA's Office of Solid Waste.\nThe thrust of your letter appears to be whether a local municipality may impose\nrequirements on the transportation a hazardous material in a damaged, defective, or leaking\npackage from a local terminal to its hub where the package is evaluated to determine\nwhether the material or produce is suitable for recycling, donation, or disposal. This would\n2\n\n<<<PAGE 3>>>\n\ninclude consideration of various issues including, among others, the point at which the\ncontents of a damaged, defective, or leaking package become \"discarded\" and meet the\ndefinition of \"solid waste\" in 40 C.F .R. § 261.2. A full consideration of these issues may\nrequire PHMSA to consult and coordinate with EPA and may be better handled in an\nadministrative preemption determination proceeding in response to an application from a\nperson who is \"affected\" by the State or local requirement in question. See 49 U.S.C.\n§ 5125(d)(l) and 49 C.P.R.§ 107.201 et seq.\nI hope this responds to your questions. If we can be of further assistance, please do not\nhesitate to contact me or Frazer C. Hilder in PHMSA's Office of Chief Counsel.\n-\nu;~~\nDelmer Billings ~\nSenior Regulatory Advisor\nStandards and Rulemaking Division\n3\n\n<<<PAGE 4>>>\n\n10 West Market Street\nSuite 1600\nIndianapolis, IN 46204\nII.SCOPELITIS\nGARVIN LIGHT HANSON & FEARY\nThe full Jervice tranJportation law fom\nwww.scopelitis.com\nMain (317) 637-1777\nFax (317) 687-2414\nTIMOTHY W. WISEMAN\nMANAGING PARTNER\ntwiseman@_lscope1itis.com\n\\AJe~b\n~ 113.3\n9 111.854\nJEFFREYS, JACKSON\n§ 17/· I\njjackson@.lscopclitis.com Damaged PClc..kaq es.\nJZ- l)/.5\"3\nJuly 13, 2012\nVia U.S. Mail & E-mail {iohn.gale@dot.govl\nMr. John Gale\nDirector of Standards and Rulemaking\nU.S. Department ofTransportation\nPipeline and Hazardous Materials Safety Administration\nEast Building, 2nd Floor\nMail Stop: E26-l 05\n1200 New Jersey Ave., SE\nWashington, DC 20590\nRe: Proper Procedures Regarding Damaged Hazmat Packages\nDiscovered After Pick Up from Customer\nTo Whom It May Concern:\nWe represent a number of companies nationwide that provide package pick up\nand delivery services for customers. These companies utilize truck equipment\nwhen performing these services and sometimes transport hazardous materials\nregulated by the Pipeline and Hazardous Materials Safety Administration\n(\"PHMSA\"}. While each entity operates slightly differently from the others, each\ncompany has, at one time or another, requested information and guidance with\nregard to the best practice (from both a safety and legal perspective) for\ntransporting packages containing hazardous materials that are discovered to\nbe damaged after initial pick up from the customer (i.e., while in transit,\nwhether at a local carrier terminal or in a vehicle). Below we have attempted to\nconstruct a hypothetical scenario that succinctly describes/ outlines our basic\nissue and would appreciate PHMSA's interpretation regarding the same.\nPursuant to 49 CFR § 173.3(c), a motor carrier utilizes salvage\ndrums to transport hazardous materials (hazmat\") packages,\ndiscovered to be damaged, defective, or leaking, from its local\nterminals to its larger hub within the applicable state. At the hub,\nIndianapolis. Chicago • Washington, D.C. • Los Angeles • Chattanooga • Detroit • Spokane • Dall~s/F~rt Worth\nSERVICES OUTSIDE CALIFORNlA AND ~UCHIGAN PROVIDED BY SCOPELITIS, GARVIN. LIGHT. HANSON & FEARY, PROFESSIONAL CORPORATION\nSERVICES IN MICHIGAN PROVIDED BY SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, PROFESSIONAL LIMITED LIABILITY CG>MPANY\nSERVICES IN CALIFORNIA PROVIDED BY SCOPELITIS. GARVIN, LIGHT. HANSON & FEARY, LIMITED LIABILITY PARTNERSHIP .\n\n<<<PAGE 5>>>\n\nPage 2\nJuly 13, 2012\nU.S. Department of Transportation\nthe packages are evaluated and repackaged, recycled, donated, or\nproperly disposed of as hazardous waste ((hazwaste\"). In the event\nthat the packages must be disposed of from the hub as hazwaste,\nthe carrier utilizes a licensed hazwaste transporter and follows\napplicable state hazardous waste law. This procedure appears to\nbe authorized by, and compliant with, federal hazardous materials\nregulations rHMR\"), including, without limitation, 4 9 CFR § 1 71.1,\n49 CFR § 173.3(c), 49 CFR § 177.854(c)(2}, and 49 CFR § 177.854(d).\nNevertheless, a local municipality argues that because a salvage\ndrum transported under this procedure is forwarded to the hub for\nevaluation and disposition-following which it seldom, if ever,\nultimately reaches its original ((destination\" or the ((shipper,\" (see 49\nCFR § 177.854(c)(2))-the carrier opens itself up to the state's\nhazwaste regulations during the brief period in which it takes steps\nat its local terminal to utilize the drum for continued transportation to\nthe hub. Specifically, the municipality argues that because the\ncarrier takes such steps, the transportation of the shipment actually\nstops at the local terminal. Accordingly, the municipality further\nargues, additional carrier activities undertaken with respect to the\ndamaged, defective, or leaking hazmat package are not functions\ngoverned by 4 9 CFR § 171.1, and the package and its\ntransportation are therefore no longer governed by the HMR.\nInstead, according to the municipality, the carrier actually holds the\npackage at its local terminal for management as hazwaste and,\nbecause transportation of the shipment has purportedly stopped,\nopens itself up to the application of state and local hazwaste\nregulations at its local terminal (e.g., those requiring hazwaste\ngenerator permits for each local terminal, those requiring the\nmanifesting and transportation of the damaged hazmat packages\nfrom each local terminal as hazwaste by a licensed hazwaste\ntransporter, etc.).\nWe believe, however, that the carrier's procedure in this scenario is not only\nauthorized by, and compliant with, the HMR, but also the safest possible\nmeans by which to carry out the carrier's HMR-governed functions. To begin\nwith, all of the events described in the scenario occur during continuous\ntransportation because, whether or not the shipment is ultimately delivered to\nits original destination, they occur after the \"carrier takes physical possession\nof the hazardous material for the purpose of transporting it\" but before \"the\npackage containing the hazardous material is delivered to the destination\nindicated on a shipping document, package marking, or other medium.\" 49\nCFR § 17l.l(c). (Moreover, even if the events described in the scenario did not\nIB.SCOPELITIS\nGARVIN LIGHT HANSON & FEARY\n\n<<<PAGE 6>>>\n\nPage 3\nJuly 13, 2012\nU.S. Department of Transportation\noccur during transportation, they would still be governed by the HMR as \"[p]re-\ntransportation functions\" under 49 CFR § 171.1 (b).)\nWe also believe that the procedure described in this scenario is specifically\nauthorized by, and compliant with, (1) 49 CFR § 173.3(c), since the procedure\ncan be properly characterized as the \"ship[ping]\" of salvage drums (in this\nscenario, to the carrier's hub) \"for repackaging or disposal\"; (2) 49 CFR §\n177 .854(c)(2), since the procedure can also be properly characterized as the\n\"forward[ing]\" of salvage drums \"to destination\" or the \"return[ing]\" of salvage\ndrums to the shipper unless and until (a) the package is evaluated at the hub\nand (b) the package documentation is subsequently changed to reflect a\n\"destination\" that is neither the original, documented \"destination'' nor the\naddress of the \"shipper\"; and/or (3) 49 CFR § 177.854(d), since the procedure\ncan be properly characterized as the \"repair[ing]\" of packages and the\n''transport[ing]\" of those packages \"to the nearest place\" (again, in this scenario,\nthe carrier's hub) \"at which\" they \"may safely be dispos[ed] of.\"\nWith the above considerations in mind, we had an opportunity on June 19,\n2012, to speak directly with Mike Hilder, a senior attorney with PHMSA's Chief\nCounsel's office. Mr. Hilder reviewed a draft version of this letter and provided\nhis opinion that, under the described set of facts, the damaged packages would\nnever fall out of \"transportation\" (as that term is defined by the HMR) and that\nthe carrier would remain compliant with the HMR throughout the process.\nConsidering the apparent strength of our independent analysis, as well as the\ninformal opinion of Mike Hilder of the Chief Counsel's office, we now\nrespectfully request PHMSA to review this issue and provide a formal letter of\ninterpretation.\nWe greatly appreciate any information you can provide regarding the above-\nstated scenario. If you require anything further to respond, please feel free to\ncontact us directly.\nVery truly yours,\nHJiJ\nTimothy W. Wiseman\nJeffrey S. Jackson\ncc: Mike Hilder, Adjudications Counsel\nRISCOPELITIS\nGARVIN LIGHT HANSON & FEARY","truncated":false,"body_characters":14185}