Healthcare Waste Institute — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, DC 20590 September 24, 2021 Mr. Darrel K. Smith President and CEO Healthcare Waste Institute 1550 Crystal Drive, Suite 804 Arlington, VA 22202 Reference No. 21-0085 Dear Mr. Smith: This letter is in response to your August 16, 2021, email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to requirements for the transportation of regulated medical waste. Specifically, you seek confirmation that the requirements for the transportation of hazardous materials in commerce found in the HMR apply to generators and carriers of regulated medical waste in quantities less than 200 lbs. The answer is yes. There are requirements in the HMR applicable to the transportation of regulated medical waste in commerce, regardless of the aggregate quantity offered or transported at a given time. As noted in the 2012 Utah Division of Solid & Hazardous Waste infectious waste transportation guidance, “OSHA and USDOT have separate regulations that apply to infectious waste. These regulations should be consulted by persons handling infectious waste.” This 2012 guidance, issued by a division of the Utah state government clarifying applicability of Utah state law, does not conflict with the requirements of the HMR.#

Page 2Therefore, PHMSA does not intend to direct the state to revise its guidance. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, Dirk Der Kinderen Chief, Standards Development Branch Standards and Rulemaking Division#

Page 321-0085 Patrick From: Foster, Glenn (PHMSA) To: Subject: Date: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA) FW: Email from Chief Counsel Inbox Thursday, August 19, 2021 4:32:46 PM Attachments: FW Request for interpretation.msg image002.png Alice and Kenetha, Please have the attached checked in as an Interp and assigned to a Specialist. Thanks, Glenn From: Saniuk, Madison (PHMSA) <madison.saniuk@dot.gov> Sent: Thursday, August 19, 2021 4:16 PM To: Foster, Glenn (PHMSA) <Glenn.Foster@dot.gov> Cc: Horsley, Adam (PHMSA) <adam.horsley@dot.gov>; Andrews, Steven (PHMSA) <steven.andrews@dot.gov>; Ciccarone, Michael (PHMSA) <m.ciccarone@dot.gov> Subject: FW: Email from Chief Counsel Inbox Glenn, The attached email and letter got routed to PHC to make sure it wasn’t a preemption request. Upon review we realized that the letter is a general HMR applicability question/interpretation request, so I’m passing it along to you and your team. Thanks, Madison Saniuk Attorney Advisor, Office of the Chief Counsel US Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE, Washington, DC, 20590 Office: 202.366.8573 ◊ Mobile: 202.807.8850 PRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended only for the named recipient(s) above and may contain information that is privileged, confidential, attorney work product or otherwise legally protected. If you have received this message in error, or are not the named recipient(s), please immediately notify me and permanently delete this e-mail message and any attachments from your workstation and/or network mail system. From: Hollingshead, Brandon (PHMSA) <brandon.hollingshead@dot.gov> Sent: Thursday, August 19, 2021 8:55 AM To: Saniuk, Madison (PHMSA) <madison.saniuk@dot.gov> Cc: Horsley, Adam (PHMSA) <adam.horsley@dot.gov>; Tsaganos, Vasiliki (PHMSA)#

Page 4<vasiliki.tsaganos@dot.gov> Subject: Email from Chief Counsel Inbox Madison, The attached email and letter from the Healthcare Waste Institute came into the Chief Counsel inbox. I am sending to you for review and whatever action is appropriate. Thank you. Best, Brandon Hollingshead Assistant Chief Counsel for General Law, Office of Chief Counsel US Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, Washington, DC, 20590 Office: 202.366.0845 ◊ Mobile: 202.604.6777 PHMSA Home | LinkedIn | Twitter | HAZMAT | OPS PRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended only for the named recipient(s) above and may contain information that is privileged, confidential, attorney work product or otherwise legally protected. If you have received this message in error, or are not the named recipient(s), please immediately notify me and permanently delete this e-mail message and any attachments from your workstation and/or network mail system.#

Page 521-0085 Patrick 1550 Crystal Drive Suite 804 Arlington, VA 22202 T 202.244.4700 August 16, 2021 T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division Pipeline & Hazardous Materials Safety Administration U.S. Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 Re: Transportation of Infectious Waste Dear Mr. Foster: The Healthcare Waste Institute (HWI) of the National Waste & Recycling Association (NWRA) is writing to request an interpretation on Utah’s Infectious Waste Management Guidance. 1 The HWI represents manufacturers and service providers as well as other professionals in the healthcare waste management industry. The Healthcare Waste Institute is an advocacy organization within NWRA, a not-for- profit trade group serving the interests of the solid and healthcare waste industries. The Institute supports private companies across the United States that manage healthcare waste, including regulated medical waste and infectious substances, through transportation and facility operations. In addition, members assist shippers in complying with hazardous materials packaging requirements. The “Infectious Waste Transportation” section states that transporters of infectious waste are regulated when they have more than 200 pounds from one source in the vehicle at one time and must follow US DOT requirements. This implies that US DOT requirements do not apply for infectious waste below Utah’s state regulated 200- 1 Infectious Waste Management Guidance, Utah Division of Solid & Hazardous Waste, May 2012, accessed August 4, 2021 at https://documents.deq.utah.gov/waste-management-and-radiation-control/solid- waste/DSHW-2019-002192.pdf#

Page 6Utah Infectious Waste Management Guidance August 16, 2021 Page 2 of 2 pound weight limit. However, US DOT regulates the packing, marking, labeling, and transportation of regulated medical waste for transportation regardless of weight. While we understand that the state does not have any regulations governing the transportation of infectious waste when it is below the weight threshold, nonetheless, transportation of Regulated Medical Waste falls under the US DOT’s Hazardous Materials Regulations which preempts state regulations and thus, transporters must comply with federal laws. However, facilities may not understand this distinction and, as a result, based on this guidance could mix infectious waste with their municipal solid waste. This jeopardizes the ability of waste transporters to comply with state and federal regulations. We therefore request an interpretation as to whether the Hazardous Materials Regulations (HMR; 49 CFR §171-180) would preempt this guidance and if so, if PHMSA will direct the state to revise the guidance accordingly. A revised guidance would provide consistency, enabling transporters to better comply with all regulations. HWI appreciates your consideration of our request. HWI and its members would welcome the opportunity to discuss these and other concerns in further detail. Should you have any questions, please call Anne Germain at 202-364-3724 or e-mail at agermain@wasterecycling.org. Very truly yours, Darrel K. Smith President & CEO#