{"operation":"document","citation":"12-0185","title":"Missouri Department of Natural Resources — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-12-17","effective_on":null,"summary":"12-0185 response to Missouri Department of Natural Resources concerning 171.2, 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0185.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0185.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0185","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2012/120185.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\nDEC 1 7 20t2\nMs. Kathy Flippin\nMissouri Department ofNatural Resources\nHazardous Waste Program\nP.O. Box 176\nJefferson City, MO 65102-0176\nRef. No.: 12-0185\nDear Ms. Flippin:\nThis is in response to your August 20, 2012 letter posing several questions concerning the\napplicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to\ndamaged wet electric storage batteries. In your letter you describe a scenario in which lead\nacid batteries are transported by highway from various locations (persons who offer or\nofferors) to a processing facility (consignee). Occasionally, leaking or otherwise damaged\nbatteries are discovered by the personnel at the processing facility.\nQ 1. What is the status of a shipment of lead acid batteries that are discovered to be leaking\nafter the shipment was delivered to the consignee?\nA 1. For purposes of the HMR, transportation begins when a carrier takes physical\npossession of a hazardous material for the purposes of transporting it and continues until the\nhazardous material is delivered to the destination indicated on a shipping paper, package\nmarking, or other medium. Incidents that are discovered after transportation has ended are\nnot subject to the HMR or incident reporting requirements.\nQ2. Who bears the responsibility for compliance with the HMR from the point of origin\n(offeror) to the processing facility (consignee)?\nA2. A person offering a hazardous material for transportation in commerce is responsible\nfor performing the functions of an offeror in compliance with all of the applicable\nregulations (see §§ 171.2(a) and 173.22). No person may offer or accept a hazardous\nmaterial for transp01iation in commerce unless the hazardous material is properly classed,\ndescribed, packaged, marked, labeled, and in condition for shipment as required or\nauthorized by applicable requirements of this subchapter or an exemption or special permit,\napproval, or registration issued under this subchapter or subchapter A of this chapter.\nQ3. If damaged and leaking batteries are discovered at the consignee facility what are the\nrequirements applicable to the carrier and the consignee?\nA3. If the damaged and leaking batteries are discovered after delivery to the consignee, the\nHMR do not apply.\n\n<<<PAGE 2>>>\n\nQ4. What are the HMR violations applicable to the consignee and the carrier if the\nconsignee rejects a load of damaged or leaking batteries and the damaged batteries are not\nrepaired or repackaged by the original offeror, the carrier or the consignee?\nA4. Each person who offers a hazardous material for transportation or transports a\nhazardous material in commerce is responsible for compliance with the applicable\nrequirements of the HMR, or a special permit, approval, or registration issued under the\nHMR, with respect to any regulated function that it performs or is required to perform.\nGenerally, each person is responsible only for the specific regulated functions that it\nperforms or is required to perform. Penalties for violations of the HMR are assessed on a\ncase-by-case basis and depend on a number of factors, including the nature, circumstances,\nextent, and gravity of the violation.\nQ5. What are the responsibilities of the consignee under the HMR if the consignee rejects\nthis shipment (i.e. the consignee asks the offeror to take the batteries to the point of origin\nwithout accepting the load)?\nAS. If a consignee refuses to accept a shipment of hazardous material that shows evidence of\nleakage during transportation, it is the carrier's responsibility to safely repair, overpack, store\nor dispose of a leaking or damaged hazardous material package in accordance with\n§ § 1 77. 854(b) and 173 .3 (c). If a load is rejected by the consignee, and all transportation\narrangements are made by the carrier, the consignee would not be responsible for\ncompliance with the HMR.\nQ6. How does the consignee or carrier's responsibility change if the consignee does not\nsign the shipping paper prior to returning the shipment to the point of origin?\nA6. Each person is responsible for the specific regulated functions that it perfonns or is\nrequired to perform.\nQ7. How does the consignee or carrier's responsibility change if the motive power is\nremoved before the decision is made to return the shipment to its origin?\nA7. Transportation ends once delivery ofthe hazardous material is complete. The HMR do\nnot define when delivery is complete other than to say that transportation continues until the\nhazardous material is delivered to the destination indicated on a shipping paper, package\nmarking, or other medium.\nQ8. How does the carrier fix damaged orleaking batteries before it leaves the consignee\nfacility if the shipment is rejected by the consignee?\nA8. A damaged or leaking battery may be offered for transport if the damaged or leaking\nbattery: (1) has been drained ofbattery fluid to eliminate the potential for leakage during\ntransportation; (2) is repaired and/or packaged in such a manner that leakage of battery fluid\nis not likely to occur under conditions normally incident to transportation; or (3) the\ndamaged or leaking battery is transported under the provisions of§§ 177.854(b) and\n173.3(c).\nQ9. Are there any regulations that specify the time permitted for damaged or leaking\nbatteries to be managed after they are discovered to be damaged or leaking?\nA9. All shipments of hazardous materials must be transported without unnecessary delay,\nfrom and including the time of commencement of the loading of the hazardous material until\nits final unloading at destination. When leaks occur in packages or containers during the\n\n<<<PAGE 3>>>\n\ncourse of transportation, subsequent to initial loading, disposition of such package or\ncontainer must be made by the safest practical means in accordance with§ 177.854(c), (d)\nand (e). Facilities that receive hazardous material but do not offer for transportation or\ntransport hazardous material are not subject to the HMR, but may be subject to regulations\npromulgated by to the Occupational Safety and Health Administration, the Environmental\nProtection Agency and state or local governments.\nQ 10. Do the answers to the above questions change based on how many batteries are found\nto be damaged or leaking (i.e. 1, 5, 10 or more)?\nAlO. No.\nQ 11. In this scenario and the responsibilities of the consignee and the carrier for ensuring\nthe safety of a shipment of batteries, what are the violations that can result from non-\ncompliance?\nAll. For purposes of the HMR, an \"offeror\" is any person who performs or is responsible\nfor performing a pre-transportation function required under the HMR for transportation of a\nhazardous material in commerce or who tenders or makes the hazardous material available\nto a carrier for transportation in commerce (see§ 171.8). There may be more than one\nofferor for a shipment of hazardous materials. Regardless of the designation of a person in\nyour scenario as the original offeror of the shipment, the carrier of the shipment or the\nconsignee who rejected the shipment, the person performing the function is responsible for\nperforming it in accordance with all applicable requirements of the HMR.\nEach person who knowingly violates a requirement of the Federal hazardous material\ntransportation law, an order issued under Federal hazardous material transportation law,\nsubchapter A of this chapter, or a special permit or approval issued under subchapter A or C\nofthis chapter is liable for a civil penalty of not more than $75,000 for each violation,\nexcept the maximum civil penalty is $175,000 if the violation results in death, serious illness\nor severe injury to any person or substantial destruction of property, and a minimum $450\ncivil penalty applies to a violation relating to training. When a violation is a continuing one\nand involves transporting of hazardous material or causing them to be transported, each day\nof the violation is a separate offense.\nQ12. Would this shipment still be considered in transportation if the driver is in the motor\nvehicle or the motive power is still attached to the trailer?\nA 11. Hazardous materials unloaded by the carrier or in the presence of the carrier would be\nconsidered transportation functions and thus subject to the HMR.\nQ 13. Does the responsibility for compliance with the HMR shift from the carrier to the\nconsignee if the consignee signs the shipping paper before the damaged or leaking batteries\nare rejected or reshipped?\nA 13. Since HMR do not require the consignee to sign a shipping paper upon receipt of a\nhazardous material, the act of signing a shipping paper does not change the applicability of\nthe HMR.\nQ14. What are the answers to these questions if the offeror is the same company as the\nconsignee? What if the original carrier and the consignee are different companies?\n\n<<<PAGE 4>>>\n\nAl4. In the scenario you describe, it is irrelevant if the carrier and the consignee are the\nsame or different companies.\nQ 15. What is the carrier's responsibility if a leaking battery is discovered while in their\npossession?\nAl5. Before commencing transportation, the carrier must drain the battery fluid to eliminate\nthe potential for leakage during transportation; (2) repair and/or package the battery in such\na marmer that leakage of battery fluid is not likely to occur under conditions normally\nincident to transportation; or (3) transport the damaged or leaking battery in a salvage\npackage in accordance with the provisions of§ 173.3(c).\nI hope this information is helpful. If you have further questions, please do not hesitate to\ncontact this office.\nV2nl ~~\nDelmer Billings /V lJ \\..../\nSenior Regulatory Advisor\nStandards and Rulemaking Division\n\n<<<PAGE 5>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom:\nSent:\nTo:\nSubject: Importance: High\nBetts, Charles (PHMSA)\nl2 -b l G5\nThursday, August 16,2012 11:08 AM\nDrakeford, Carolyn (PHMSA)\nFW: Request for Regulator/ Interpretations Regarding Damaged Lead Acid Batteries\nFrom: Flippin, Kathy '\"'c·'\"·'·''\"''''.o, '''\"''\nSent: Monday, August 13, 2012 11:07 AM\nTo: Roye, Joemo CTR (PHMSA)\nCc: Clatterbuck, Robert (PHMSA); Pollard, Terry (PHMSA); Lamb, David; Hansen, Denllis; Groner, Darleen; Jones, Ricardo\nSubject: Request for Regulatory Interpretations Regarding Damaged Lead Acid Batteries\nImportance: High\nU.S. Department of Transportation\nPHMSA Office of Hazardous Materials Standards\nAttn: PHH-10\nEast Building\n1200 New Jersey Avenue, S.E.\nWashington, D.C. 20590-0001\nTo Whom It May Concern:\nRE: Request for formal letter of interpretation regarding damaged lead acid batteries\nI am writing to request regulatory interpretations on the following questions regarding the management and shipment\nof lead acid batteries. As this may be used for a meeting on August 16, 2012, we would appreciate any efforts you could\nmake in expediting this request. In answering these questions, would you please provide answers that address each of\nthese three perspectives?\nA. If the batteries are damaged and leaking,\nB. If the batteries are damaged, have no liquid and are not leaking and\nC. If the batteries are damaged, do contain liquid, but are not leaking.\nAs each of these will be evaluated, this letter will refer to each of these as \"damaged and/or leaking batteries.\"\n1. 2. 3. 4. If a shipment of damaged and/or leaking lead acid batteries arrives at a battery processor (consignee) under\nshipping paper/bill of lading, what is the status according to U.S. Department of Transportation (DOT)\nregulations? Who bears the responsibility for the shipment to and from the consignee, onsite management (i.e.,\nrepairs, shipping papers, truck management and placarding, any time limits for rejecting the shipment, onsite\nprocessing) and what are the requirements at that point for the following?\nWhat are the requirements for the consignee)?\nWhat are the requirements for the shipper?\nIf the consignee sees that the batteries are damaged and/or leaking and the consignee \"rejects\" the shipment\n(i.e., asks the shipper to take the batteries back to the point of origin without the consignee signing the shipping\npaper, and without the shipper or the consignee fixing the load) what are the DOT violations/citations and to\nwhom would they be issued? In this case, what responsibility does the consignee bear under DOT regulations\nfor fixing the damaged and/or leaking batteries before shipment? What are the shipper's responsibilities?\n1\n\n<<<PAGE 6>>>\n\n5. In scenario #4 above, how does the consignee's or the shipper's responsibility change (or the shipper's\nresponsibility change) if he/she does or does not sign the shipping paper before returning the shipment to the\npoint of origin?\n6. In scenario #4 above, how does the consignee's or the shipper's responsibility change if the trailer is removed\nfrom the power source before the decision is made to return the shipment to the point of origin?\n7. According to DOT regulations, how does the shipper have to \"fix\" the load of damaged and/or leaking batteries\nbefore it leaves the consignee's facility if rejected by the consignee? What other actions must the shipper take\nto be in compliance with DOT regulations regarding damaged and/or leaking battery repair and preparation for\nshipment? What requirements must the consignee follow in regard to these steps?\n8. Are there any regulations that specify the time allowed for the batteries to be managed in these scenarios after\nthey are discovered to be damaged and/or leaking? What are they? Who must comply with these time limits?\n9. How do the answers to 1-7 above change based on how many batteries are found to be damaged and/or leaking\n(i.e., 1, 5, 10, more?)\n10. Given the scenario above and both the shipper's and the consignee's responsibilities regarding a shipment\ncontaining damaged and/or leaking batteries, what are the DOT citations/violations that can result? Please list\nseparately for the shipper, the consignee, and the point of origin.\nWhat constitutes \"possession\" and \"relinquishing possession\" in the contexts noted above?\n1. Would the answers change if the driver is still in the truck or still at the consignee's facility, or if the tractor is still\nattached to the trailer?\n2. Please explain if there is a difference if the consignee signs the shipping paper before the damaged and/or\nleaking batteries are rejected or sent back on the road?\n3. What are the answers to the questions above if the shipper's company is the same as the consignee's? And\nwhat are the answers if the shipper is an independent company (i.e., not owned by the consignee)?\n4. If a leaking battery is discovered while in the possession of the carrier, what is their responsibility?\nThank you very much for your help in answering these questions. If you have any questions, please contact me at 573-\n751-1718 or at =c;..:\"C-'-'O'C-C\"JC£C:,::,o.\"O,\",,C\"~\"\nSincerely,\nKathy S. Flippin, Chief\nCompliance and Enforcement Section\nHazardous Waste Program\ncc:\n2","truncated":false,"body_characters":15095}