{"operation":"document","citation":"22-0020","title":"Justin Lacy — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-08-04","effective_on":null,"summary":"22-0020 concerning 171.8, 173.120, 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0020.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0020.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0020","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76696/220020.pdf","body":"<<>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nAugust 4, 2022\nMr. Justin Lacy\n336 S. Taylor Ave.\nEssex, MD 21221\nReference No. 22-0020\nDear Mr. Lacy:\nThis letter is in response to your March 25, 2022, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the placarding of hazardous\nmaterials. In your email, you state that you work for an environmental cleanup company that\npumps out fuel tanks at various customer sites for residential properties and businesses. You\nalso state that after you pump out and clean these customer fuel tanks, you often transport—in a\nvacuum truck—mixtures of either gasoline or diesel fuel mixed with water used to clean out the\nfuel tanks.\nYou ask whether these return loads—gasoline or diesel fuel mixed with water—are considered\nhazardous materials and require placarding. You further state that it has been your company's\npractice not to placard these types of return loads because they have been considered “recycled\nwaste” or “gassy water.” Lastly, you state that the maximum capacity of the tank on your\nvacuum truck is more than 119 gallons—therefore meeting the definition of a “bulk packaging”\nin § 171.8 of the HMR. You ask whether these return loads—of either gasoline or diesel fuel\nmixed with water—are considered hazardous materials and require placarding.\nIn accordance with § 173.22 of the HMR, the shipper must properly class and describe a\nhazardous material. This Office does not perform the function of classifying or describing a\nhazardous material. However, it is the opinion of this Office that the recovered return materials\n(i.e., “recycled waste” or “gassy water”) you describe in your email may continue to meet the\ndefining criteria of a Class 3 flammable liquid, in accordance with § 173.120.\nThe gasoline and/or diesel fuel does not mix with water and may retain their physical properties\nthat make them hazardous materials under the HMR—including the respective flash points of\ngasoline and diesel fuel. In addition, the capacity of the tank on your vacuum truck is more than\n119 gallons—therefore meeting the definition of a “bulk packaging” in § 171.8 of the HMR. In\nthis scenario, the recovered return materials would be subject to the placarding requirements of\nSubpart F of Part 172 of the HMR. Since the recovered return materials may require placarding,\n\n<<>>\n\nas described under this scenario, the motor vehicle driver would need a commercial driver’s\nlicense that is properly endorsed in accordance with 49 CFR 393.93 of the Federal Motor Carrier\nSafety Regulations.\nI hope this information is helpful. 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<<>>\n\nLarson\n22-0020\nFrom: Foster, Glenn (PHMSA)\nTo: Subject: Date: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA)\nFW: Fw: J. J. Keller & Associates - Placarding\nWednesday, March 30, 2022 9:19:00 AM\nAlice and Kenetha,\nCan one of you have the below inquiry checked in as a request for a LOI and assign it to the next\nSpecialist in the rotation, please?\nThanks,\nGlenn\nFrom: Bomgardner, Paul (FMCSA) \nSent: Wednesday, March 30, 2022 8:01 AM\nTo: Foster, Glenn (PHMSA) \nSubject: FW: Fw: J. J. Keller & Associates - Placarding\nHi Glenn:\nI think that this question needs to go through PHMSA for an official answer. See below from Justin\nLacy. In my mind, I think that the short response is that Justin’s concerns are justified, and whether\nor not the waste that they are transporting is hazardous or not depends on the flashpoint of the\nmixture. They would have to test the materials according to 49 CFR Sections 173.120 and 173.121.\nPlus, they need to check on the exceptions for Class 3 materials in Section 173.150.\nBut, I might be off the mark, so I thought that I would send to you guys.\nRegards,\nPaul\nFrom: Williams, Crystal (FMCSA) \nSent: Wednesday, March 30, 2022 7:44 AM\nTo: Bomgardner, Paul (FMCSA) \nSubject: FW: Fw: J. J. Keller & Associates - Placarding\nHi Paul!\nPlease see the question below. It’s about placarding and I think may belong to you guys. please let me know – thanks!!\nIf not\nCrystal\nFrom: Baczara, Bohdan (OST) \n\n<<>>\n\nSent: Friday, March 25, 2022 10:47 AM\nTo: Williams, Crystal (FMCSA) ; Price, Bryan (FMCSA)\n\nSubject: FW: Fw: J. J. Keller & Associates - Placarding\nGood morning,\nI think this belongs to FMCSA. If so, can you forward to the appropriate office for response? Thx.\nFrom: Justin Lacy \nSent: Friday, March 25, 2022 10:22 AM\nTo: ODAPCWebMail \nSubject: Fwd: Fw: J. J. Keller & Associates - Placarding\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nI am forwarding this email to provide understanding my questions regarding these circumstances. I\nhave reached out to a few different reputable resources but have not been able to get a\nresponse that addresses this. This circumstance is a very normal and popular procedure within the\nindustry so my inquiry comes from an honest and desire to understand fully what the protocol\nshould be. I am now reaching out to this agency because it handles transportation issues and\nregulations. We are located in the Maryland / DC area if this helps.\n---------- Forwarded message ---------\nFrom: Justin Lacy \nDate: Wed, Mar 23, 2022, 6:44 AM\nSubject: Fw: J. J. Keller & Associates - Placarding\nTo: Justin Lacy \n----- Forwarded Message -----\nFrom: Justin Lacy \nTo: J. J. Keller & Associates \nSent: Wednesday, March 23, 2022, 06:43:12 AM EDT\nSubject: Re: J. J. Keller & Associates - Placarding\nHas there been any follow up to my more recent attempt at clarification on these\nmatters?\nOn Saturday, March 19, 2022, 08:53:31 AM EDT, Justin Lacy wrote:\nThank you for your quick response, I am sorry but it didn't really answer my\nquestions. I am a CDL driver who works for an environmental company. We do a lot\nof spill clean up and fuel transfers. Often times we are called to pump out homeowner\n\n<<>>\n\ntanks, fuel stations, dealership tanks, found storage tanks on lots being excavated.\nMy question is for placarded loads over 119 gallons. The popular consensus that\nseems to run throughout the industry is that recovered diesel is considered a recycled\n\"waste\" and therefore does not need to be placarded. An example of this scenario\nwould be I get a call to pump a 1000 gallon diesel tank at a car dealership and we\nhave to pressure wash and clean it, all in the same load so that the tank can be\nremoved and terminated. At the end of the day, my vac truck has 700 gallons of\ndiesel and 152 gallons of wash water mixed. Total 852 gallons. My question is, does\nthis load need to be placarded. When I raise this concern, I am always told that we do\nnot need to placard such loads because they are being classified recycled waste. I\nbelieve the reason being is that this could pose an issue for the non haz drivers who\ntransport these materials.\nThe other half of my question was similar but for gasoline. We often pump and\ntransport loads of gasoline from fuel stations. Many times it could be mostly water but\nsome gas mixed in. I could pump 100 gallons of water and then 50 gallons of gas. In\nthis case the popular consensus is to transport it as \"gassy water\" to avoid the\nplacarding. All of these loads are also carried under a \"non hazard\" waste manifest\nfor transport, to which I have also raised questions about. My arguments have always\nbeen to placard these loads because oils separate to the top of the loads and the\nvolume is just the same. Beings that the vapors emit from the top of the load still,\nresulting in the same circumstances. I know this is a lengthy response but I have\nbeen concerned about this practice since I have been in the industry when I started\nmore than 15 years ago. I really appreciate your time and consideration towards my\nconcerns. I have asked around within the industry and most answers come from\npeople who do not know the nuances of the regulations or have an interest in the\ncompany's side of continuing doing business the way they have always done it.\nOn Friday, March 18, 2022, 09:21:11 AM EDT, Heather N. (J. J. Keller & Associates)\n wrote:\nHi jlay1,\nOur subject matter experts have responded to your Expert Help request; you can find the response\nbelow. If you have follow-up questions or comments, please feel free to reply to this email.\nHeather N. (J. J. Keller & Associates)\nMar 18, 2022, 8:21 AM CDT\nHi Justin,\nThanks for your question.\nA container or a tank is non-bulk if the capacity is 119 gallons or less. A\ncontainer or a tank is considered bulk if its capacity is greater than 119\n\n<<>>\n\ngallons.\nFor the gasoline, it will depend on the capacity of the tank and whether it has\nbeen \"sufficiently cleaned of residue and purged of vapors to remove any\npotential hazard\" as required in 172.514. This PHMSA interpretation speaks to\nwhat that means. If in bulk and it has been cleaned and purged, no placards\nrequired. If not, then it is treated as if it was full and would require placards.\nIf in non-bulk, then there are two exceptions that might come into play -\n172.504(d), which says, \"(d) Exception for empty non-bulk packages. Except\nfor hazardous materials subject to § 172.505, a non-bulk packaging that\ncontains only the residue of a hazardous material covered by Table 2 of\nparagraph (e) of this section need not be included in determining placarding\nrequirements.\" And also the general placarding exception in 172.504(c), which\nsays that placards aren't required for Table 2 materials less than 1,001 pounds\ngross weight. Placards likely not required in this situation.\nHere's the regulation regarding placarding and whether a bulk package\nrequires placards if it contains residue--\n§ 172.514 Bulk packagings.\n(a) Except as provided in paragraphs (c) and (d) of this section, each person\nwho offers for transportation a bulk packaging which contains a hazardous\nmaterial, shall affix the placards specified for the material in §§ 172.504 and\n172.505.\n(b) Each bulk packaging that is required to be placarded when it contains a\nhazardous material, must remain placarded when it is emptied, unless it -\n(1) Is sufficiently cleaned of residue and purged of vapors to remove any\npotential hazard;\n(2) Is refilled, with a material requiring different placards or no placards, to\nsuch an extent that any residue remaining in the packaging is no longer\nhazardous; or\n(3) Contains the residue of a hazardous substance in Class 9 in a quantity\nless than the reportable quantity, and conforms to § 173.29(b)(1) of this\nsubchapter.\n\n<<>>\n\nRegarding the diesel, diesel in a bulk package (a container with a capacity that\nexceeds 119 gallons) requires placards. If diesel is in a non-bulk container\n(119 gallons or less), it may be able to be reclassified as a combustible liquid.\nCombustible liquids in non-bulk packagings are exempt from all hazardous\nmaterials regulations. This article we have helps explain diesel fuel\nrequirements - When does diesel fuel require placards?\nI hope this information helps clarify the requirements! Please let me know if\nyou have any other questions.\nHeather - J. J. Keller Subject Matter Expert\nThis email is a service from J. J. Keller & Associates. Delivered by Zendesk\n[PELPDO-Q7E6V]","truncated":false,"body_characters":11892}