{"operation":"document","citation":"98-0512","title":"Waste Management, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1998-04-02","effective_on":null,"summary":"98-0512 response to Waste Management, Inc. concerning 172.101, 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0512.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0512.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0512","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1998/980512.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\nWashington, D.C.\n400 Seventh Street, S.W\nSpecial Programs\nResearch and\n20590\nAdministration\nAPR 2 1998\nMr. Daniel J. Duncan\nWaste Management, Inc.\n3003 Butterfield Road\nOak Brook, IL 60521\nDear Mr. Duncan:\nThis is in response to your letter of April 3, 1997, asking if your company can reclassify\nexplosives and forbidden materials that were treated to reduce the explosive characteristic\nwithout subjecting them to the requirements for testing a new explosive contained in 49 CFR\n173.56. You stated your company combines these materials with agents and reduces the\nconcentration of the hazardous material in the mixture to a range of 1-10%, which you state\nyour company has determined is classified as either a Division 4.1 material or the material is\ndiluted to the point where it no longer exhibits explosive characteristics.\n!\nThe answer is no. In accordance with § 173.124(a)(1), desensitized mixtures of explosive\nmaterials, other than those specifically listed in the Hazardous Materials Table (§ 172.101),\nmust be classed and approved by the Office of Hazardous Materials Exemptions and Approvals\nunder the terms of an approval or an exemption. Whether a diluted (desensitized) explosive\nsubstance is classified in Division 4.1 depends on data obtained following examination by a\nqualified laboratory and procedures specified in § 173.56.\nI hope this information is helpful. If we can assist you further, please contact us.\nSincerely,\nNatte 2 miletell\nHattie L. Mitchell, Chief\nRegulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nOBER OF RODENCE TRACERIES ANAR ENTERED\nCORRESPONDENCE TRACKING SHEET\nDATE\nCOMPANY\nSPECIALIST\n04/03/97\nWASTE MANAGEMENT\nEDMONSON\nemp\n/FROM: DANIEL DUNCAN\nRECEIVED:\nASSIGNED:\nDUE:\n04/16/97\nSUBJECT\n05/14/97\n173.21\nSIGNED:\nCOMMENTS:\nSUMMARY:\nCOMPLEXITY:\nH\nM\nL\n8/13\nDRAFTS:\nSIGNATURE:\n(Ke/ Wation\nSpencer,\nSections 72101160224\nPlease\n113.22 appen to me to fine\nremer.\nLum premisin 6 do this Artiled\nc. Ke\nan er inger? Open.\n8115197\nbileen Camonton.\n× 64481\n\n<<<PAGE 3>>>\n\n•\nEdmonson, Eileen\nFrom: Edmonson, Eileen\nMonday, January 05, 1998 5:38 PM\nKe, Charles; O'Steen, James; Mazzullo, Ed; Mitchell, Hattie\nSubject:\nKarim, Jennifer\nRe: Daniel Duncan Letter\nWhile on vacation, I received a message on my voice mail from Daniel Duncan, Waste\nManagement, inc., (919) 528-3996, on December 31, 1997, asking if he and members of his\ncompany can have an opportunity to meet with Mr. O'Steen and Dr. Ke to discuss his 1997 letter\ndraft and an issue paper 1 prepared when 1 was trying to determine the correct response. Please\non desensitized explosives. The letter is circulating in final. I have attached a copy of the latest\nlet me know if you want me to contact him with your response or if you will be contacting him\ndirectly.\nThanks,\nElleen\n7\n\n<<<PAGE 4>>>\n\n•\n•\nWMX\nEdmonsien\nWaste Management, Inc.\nFile 173.21, 173.540\nA WMX Technologies Company\n3003 Butterfield Road\nPhone 708.572.8800\nSc: 180,114\nOak Brook, IL 60521\n•\nApril 3, 1997\nEdward Mazzulo\nOffice of Materials Standards\nResearch and Special Programs Administration\nU.S. Department of Transportation\n400 Seventh Street, SW\nWashington, D.C. 20590\nDear Mr. Mazzulo:\nI am writing on behalf of Waste Management, Inc. to confirm our understanding of the Hazardous\nMaterials Regulations as they apply to explosives and forbidden materials. Waste Management, Inc. and\nits operating subsidiaries routinely transport, and offer for transportation, a variety of hazardous materials.\nIn most cases, the hazard class, proper shipping name, and authorized packaging for the materials is readily\nobvious; however, the classification procedures for materials formerly exhibiting Class 1 explosive\nproperties has been the source of some confusion in the past, and is the topic for this letter.\nIn the hazardous waste management industry, it has been and is a common practice to treat small amounts.\nof Class 1 explosives and forbidden materials to remove the explosive characteristic, then offer and\ntransport the resulting mixture to a hazardous waste incinerator for disposal ás a Division 4.1 flammable\nsolid, or in some instances, as a non-regulated solid waste. Waste Management's Technical Services\nDivision and its competitors have been conducting these operations for many years.\nOur record in\nmaterials occurring to date:\ntransporting these mixtures during this period has been exemplary, with no incidents involving these\nWaste Management provides these services to a number of private and public institutions which have no\ndisposal outlet for these materials. Examples include high school and university laboratories, hospitals,\nmanufacturing facilities, police and fire departments, and the Drug Enforcement Administration.\nCompounds commonly encountered include lead azide, ammonium picrate, RDX, HMIX, TNT, picric acid,\nand many other compounds that represent Class 1 hazards when in the pure state.\nWhen encountering these types of compounds, Technical Services field personnel employ established\npractices to render these compounds both non-explosive and harmless. Through the addition of stabilizing\nagents, such as water and clay absorbent, the purity of the explosives or forbidden materials is reduced to a\nconcentration ranging from 1-10%, which eliminates their explosive characteristics. The procedures\nemployed are(supportöd by (t) extensive studies-condected by Hercules Inc. for the U.S. Army Toxic and\nHazardous Materials Agency (USATHAMA), which demonstrate that, when these materials are stabilized\nwith water and sand, they do not react explosively to induced shock or submerged flame initiation stimuli in\naccordance with Bureau of Mines explosive classification protocol; and (2) our own experience in the\nhandling, transportation, and disposal of these materials.\nPrinted on recycled paper\n\n<<<PAGE 5>>>\n\nWaste Management has reviewed DOT's Hazardous Materials Regulations as they apply to explosives in\n49 CFR Part 173 Subpart C and concluded that they do not apply to treated mixtures not exhibiting\nexplosive characteristics. We base this conclusion on the following rationale:\nDOT defines a forbidden explosive in §173.54 as an explosive that has not been approved in\naccordance with §173.56.\nSection 173.156 contains definitions and procedures for the\nclassification and approval of new explosives. In $173.56, DOT defines a \"new explosive\" as an\nexplosive produced by a person who (1) has not previously produced that explosive; or (2) has\npreviously produced that explosive but has made a change in the formulation, desiga or process so\nas to alter any of the properties of the explosive\". From the definition, it is clear that a new\nexplosive is restricted to a material that is or remains an explosive. Since the treated mixtures no\nlonger exhibit explosive characteristics, they are not, by definition, new explosives and are\ntherefore not subject to DOT's new explosive regulations.\n- -\n49 CFR §173.22 assigns the shipper responsibility for properly classifying, describing, and packaging a\nhazardous material prior to offering it for transportation. Based on our extensive experience handling these\nclassification for these treated mixtures is either Division 4.1 flammable solid or, in some instances, non-\nmaterials, we have determined, pursuant to 49 CFR §173.22, that the most appropriate and accurate\nregulated when the mixtures are diluted to a point where they no longer exhibit a DOT hazard.\nIt is important to note that in the majority of cases the quantity of explosives and forbidden materials that\nrequire disposal is less than one ounce, and often represents the only container of this material on-site.\nAfter treatment, the resulting mixture will generally weigh less than one pound. As such, it makes no\npracticable sense to submit this mixture to DOT for testing and classification purposes. In addition to the\ncosts involved, United States Environmental Protection Agency (USEPA) rules require that generators\ndispose of these materials within 90 days after being declared a waste because these materials often exhibit\nthe hazardous waste characteristic of reactivity (i.e., D003). Submitting samples to DOT and obtaining\nindividual approvals for these materials would serve no useful purpose, afford no additional protection to\nthe environment or public health, and does not appear to be required by the regulations. It will result only\nin unnecessary delays which could cause violations of the USEPA's hazardous waste storage restrictions,\nand could pose additional risk to public health if the materials are allowed to sit idle for extended periods\nwithout processing.\nWaste Management is aware of DOT Exemption E-8451 that allows the transport of up to 25 grams of\nexplosives having an energy density less than or equal to pentaerythritol tetranitrate. Advanced\nEnvironmental Technical Services (AETS), a majority-owned subsidiary of Waste Management, is a party\nto DOT-E-8451, and has utilized this exemption to transport small amounts of explosives in the past;\nhowever, use of the exemption packaging is not always practical or permitted in all circumstances. On\ni\nsome occasions, the presence of explosive materials at a customer's site is not always known until after our\npersonnel arrive at the site to arrange disposal for other materials. Because the packagings are costly and\ndifficult to construct, it is not practical to equip all of our crews with the packagings as a routine practice.\nFurther, because some of the explosives encountered are not safe to handle and dispose of until they have\nbeen treated and rendered non-explosive, the resultant mixture exceeds the 25 gram limit allowed for in the\nexemption. Thus, use of DOT-E-8451, as advocated by DOT, as a means to ship small amounts of\nexplosives does not provide a safe, practical or permitted solution in all instances.\n\n<<<PAGE 6>>>\n\n-\n. =\nIn sum, Waste Management and its competitors provide a valuable service to a wide variety of customers\nin the private and public sectors. Dangerous chemicals are removed from the shelves of laboratories in\nschools and other facilities where they pose a real threat to immediate personnel. After being rendered\nharmless and non-explosive through proven techniques, they are classified under 49 CFR §173.22, then\n• safely transported and disposed of in permitted hazardous waste combustion units. Waste Management\nintends to continue this practice since it is our belief that it is being conducted in compliance with DOT\nregulations, and we would like your written concurrence to that effect. If you have any questions or would\nbe like to meet with us to discuss this issue further, please contact me at (630) 218-1735.\nSincerely,\nDaniel j, Dunca\nDaniel J. Duncan\nWaste Management, Inc.\nCC:\nJohn Abrams\nJim Bell\nKevin Connors\nKevin Igli\nMike Richter\nArlene Lyons\nGreig Siedor\n........\n.......\n\n<<<PAGE 7>>>\n\ni\n*\nISSUE PAPER\nDecember 8, 1997\nDaniel Duncan Letter, Waste Management, Inc.\nRE: Waste Explosives Going for Disposal\n*\nWMI Issues:\nWMI says they reduce the content of the explosive or forbidden material in a waste through the addition of\nreclassify these materials in accordance with § 173.22 because this practice eliminates the explosive\nstabilizing agents until the material is reduced to a concentration from 1-10%. They state they can\nexplosive in accordance with § 173.56.\ncharacteristic from these materials. They have interpreted the HMR as not requiring them to test a non-\n*\nThey do not provide any test data to prove their points. WMI states the procedure is supported by\nextensive studies conducted by Hercules, Inc., for the U.S. Army Toxic and Hazardous Materials Agency,\nstudies were supposed to have demonstrated that when these materials are mixed with water and sand they\nbut did not supply these studies. I cannot locate this agency in the 1995-96 Government Manual. The\ndo not react explosively to induced shock or submerged flame initiation stimuli in accordance with BOE\nclassification protocol.\nWMI states they have treated these materials to reduce their characteristics for years, but don't give the\nexact time period, and that no incidents have occurred involving these remixed materials.\n*\n25 grams of explosives having an energy density less than or equal to pentaerythritol tetranitrate, but the\nWMI states one of its subsidiary companies is a party to DOT-E 8451, which allows the transport of up to\nresulting non-explosive mixture in their waste explosives scenario exceeds the 25 gram limit, making the\nexemption useless for them\nWMI Complaints:\nWMI complains that the resulting amounts of reduced concentration material are small and would be\nexpensive to send off for testing.\n*\nWMI also complains that they do not know when they are going to encounter explosives when they go to\ncollect waste materials, and, because the packagings are costly and difficult to construct, do not equip all\ntheir crews with these packagings as a routine practice.\nQuestions:\nThe HMR in § 173.56 appears to require them to prove each mixture is non-explosive through testing. Is\nthis correct? Would a possible solution be to test for a range of these mixtures that is all inclusive of the\nstill satisfy the HMR?\nmaterials they are transporting and issue an exemption? What approach would be most cost effective and\npackaging restrictions eliminate the possibility of evaporation?\nWhat risks could occur if the water evaporates from WMI's new sand/water/explosive mixture? Could\n*\nShould a discussion on Special Provision 23 be added to the letter? Revised in Docket HM-215B (5/6/97),\nthis provision permits certain diluted explosives to be reclassed Division 4.1 if:\ndescription at any time during transport\" or\n1) \"so packed that the percentage of diluent will not fall below that stated in the shipping\n2) quantities of not more than 500 g per package with not less than 10 percent water by mass\nTests and Criteria.\nproduce a negative result when tested in accordance with test series 6(c) of the UN Manual of\n\n<<<PAGE 8>>>\n\nEdmonson Eileen w\nFrom: Watson, Spencer\nSent: Wednesday, October 15, 1997 4:56 PM\nCc:\nEdmonson, Eileen; Ke, Charles\nSubject:\nHedgepeth, Suzanne; Jones, James E.; Karim, Jennifer; Mitchell, Hattie\nRE: Status of Daniel Duncan Letter\nEileen,\nsame week of August and that I explained in your office how your draft reply to Waste\nMy best recollection about this missing file is: I returned your draft personally on or about that\nManagement appeared to be inconsistant with the HMR and DHM policy. I specifically recall\nexplaining to the best of my knowiedge that any desensitized mixture of explosive materials\nother than those specifically listed in 172.101 table (e.g., UN1310,ammonium picrate, wetted with\nnotless than io percent water must always be classed and approved by the Office of\nrefer to 173.124(a)(1).\nHazardous Materials Exemptions and Approvals by either an approval or an exemption. Please\nDHM-10 in 1995 or 1996 to April Lasch of Laidlaw Environmental Services which went into some\nI also remember referring you to a recent interpretation letter (filed under 173.56) issued by\ndetail on the technical rationale behind the HMR on this subject. It has been our policy that no\nand classify the material.\nmatter how dilute the 'explosive material' in whatever form, OHMS reserves the right to examine\ndesensitized explosive materials other than those specifically called out in the 172.101 table by\nIt is RSPA's and NOT the shipper's perogative to classify any\nname. OHMEA has issued many, many EX-approvals for explosives at the or below the 1\nhazardous materials, as appropriate to the diluent.\npercent level in solid or liquid form as either Div 1.4S, Div. 4.1 Class 3 or 'non regulated'\nRe forbidden explosives', see Section 173.54(a), which states that an explosive that has not\nbeen approved (by us) in accordance with 173.56 shall not be offered for transportation or\ntransported and is, i.e., 'Forbidden. There is to my knowledge, no concentration range below\nwhich an explosive ceases to be forbidden until or unless approved, by law or policy, unless it it\nspecifically identified in the 172.101 table as in a Class other than Class 1, by it's proper shipping\nafter suggested you might further discuss it with Jim Jones and Sue Hedgepeth for\nLasily! believe that you were going to do a redraft of the letter after reviewing the HMR again\nconfirmation. Perhaps they might have your letter draft?\nSpence\nFrom: Edmonson, Eileen\nTo: Ke, Charles; Watson, Spencer\nCc: Karim, Jennifer; Mitchell, Hattie\nSubject: Status of Daniel Duncan Letter\nDate: Wednesday, October 15, 1997 1:45PM\nto his letter. My records show i sent the draft response to your office for comment on 8/13/97.\nCharlie/Spencer - Mr. Duncan called me this afternoon to inquire about the status of our response\nyour review? I have copied my draft reply in this e-mail for your ready reference.\nCan you tell me how it's going? Is there any information I can provide you with that will aid you in\nSincerely,\nEileen Edmonson, X64481\nCOPY OF DRAFT RESPONSE:\nMr. Daniel J. Duncan","truncated":false,"body_characters":17140}