{"operation":"document","citation":"99-0302","title":"Howrey and Simon — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2000-04-06","effective_on":null,"summary":"99-0302 response to Howrey and Simon concerning 172.102.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0302.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0302.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0302","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1999/990302.pdf","body":"<<<PAGE 1>>>\n\n400 Seventh Street. S.W.\n1S. Department\nWashington, D.C\n20590\nif Transportatior\nAPR - 6 2000\nMr. David B. Weinberg\nRef. No. 99-0302\nHowrey and Simon\n1299 Pennsylvania Avenue NW\nWashington, DC 20004-2402\nDear Mr. Weinberg:\nThis is in response to your letter dated October 28, 1999, and subsequent telephone conversations\nbetween Mr. Kerchief, of your firm and Eric Nelson of our staff regarding the shipment of small lithium\nbatteries for recycling under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). I\napologize for the delay and hope that it has not caused any inconvenience. Your questions are\nparaphrased and answered as follows:\nQuestion 1: Are the only requirements applicable to the shipment of used small lithium\nbatteries for recycling those set forth in § 173.185(h)?\nSmall lithium batteries which are excepted by § 173.185(b) or (c) are not subject to the requirements\nof the HMR. Section 173.185(h) applies to cells and batteries offered for disposal, and does not apply\nto cells and batteries offered for recycling. Small lithium batteries which are offered for recycling and\nare not excepted by § 173.185(b) or (c) are fully subject to the HMR and including, but not limited to,\ntraining, shipping papers, marking, and the forbidding for transportation of materials and packages\nwhich are likely to create a dangerous quantity of heat.\nQuestion 2: As long as used dry cell batteries other than used lithium batteries are shipped\nvia ground transportation for recyeling or disposal, and are packaged and handled as to avoid\nsmoke, fire, or resulting personal injury (e.g. preventing the combination of flammable\nmaterials or to allow off-gassing) do any further requirements of the HMR apply?\nThe answer is no, as long as the batteries are not a hazardous waste as provided by § 171.8. Special\nprovision 130 of § 172.101, Hazardous Materials Table, excepts \"Batteries, dry, not subject to the\nrequirements of this subchapter\" from regulation only when they are offered for transportation in a\nmanner that prevents the dangerous evolution of heat (for example, by the effective insulation of\nexposed terminals). However, batteries that are not subject to the HMR when new, could be subject\nto the HMR as a Class 9 Miscellaneous hazardous material when regulated as a hazardous waste.\n172.102\n990302\n\n<<<PAGE 2>>>\n\nIn addition, § 173.21 Forbidden materials and packages, applies to every material in transportation in\ncommerce at all times, which includes materials that are not specifically subject to the HMR in the event\nthe material is used to create a device that generates sparks or a dangerous quantity of heat. For the\npurpose of § 173.21(c), \"dangerous quantity of heat\"\" is considered, in part, to be a sufficient amount of\nnergy to cause leakage of the battery contents, smoke or fire, or personal injury\nI hope this satisfies your request.\nSincerely,\nDelmer F. Billings\nChief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nAttorneys at Law\nHOWREY & SIMON\nWashington, DC 20004-2402\n1299 Pennsylvania Ave., NW\n(202) 783-0800\nFAX (202) 383-6610\n(202) 383-7435\nDavid B. Weinberg\nweinbergd@howrey.com\nOctober 28, 1999\nnelson\n8172.102\nMr. Tom Allan\nSP 130\nOffice of Hazardous Materials Standards\nResearch and Special Programs Administration (RSPA)\n99-0302\nU.S. Department of Transportation\n400 Seventh Street, S.W., Room 8422\nWashington, DC 20590-0001\nRe:\nSpecial Provision 130 and the Transportation of Used Dry Cell\nBatteries for Recycling\nDear Mr. Allen:\nI write on behalf of our client the Portable Rechargeable Battery Association (\"PRBA\"),\ninterpretation of the applicability of Special Provision 130, the July 7, 1999 Advisory Guidance,\nto request confirmation of our understanding of the Department of Transportation's\nand its rules generally, to the ground transportation of used rechargeable and other dry cell\nbatteries for recycling.\nPRBA's membership includes approximately 100 of the nation's largest suppliers of\nrechargeable batteries and equipment powered by them. Many of its members support industry-\nwide efforts to collect used nickel cadmium batteries for recycling, and a number also have\nimplemented (or are contemplating implementing) collection programs for used batteries that\nemploy other chemical technologies.\nWe understand that you have advised at least one of our members orally that the DOT's\nHazardous Materials Regulations (HMR) are directed principally at air transportation of products\nbeing offered for commercial purposes (e.g., for sale or distribution as is, or for incorporation\ninto new battery-powered products). Further, we understand that you have advised that as long\nwere not we shipment of ed yel ale gene red proud gir, oring or\ndisposal as out of compliance with its regulations or guidance.\nThese interpretations seem quite sensible to us. To the best of our knowledge, the only\nportion of DOT's hazardous materials transportation rules which specifically addresses shipment\nof used batteries for recycling or disposal appears in the regulations directed to used lithium\nbatteries, at 49 C.F.R. § 173.185(h). Lithium batteries, as you no doubt are aware, present the\nWashington, DC\nLos Angeles\nSilicon Valley\n\n<<<PAGE 4>>>\n\nMr. Tom Allan\nHOWREY & SIMON\nOctober 28, 1999\nPage 2\ngreatest potential safety concern of all currently-employed battery chemistries. Yet this\nprovision specifically excludes motor vehicle shipments of used small lithium batteries for\ndisposal from most of the requirements of the HMR. All that is required is that the batteries and\ncells shipped are protected from short circuiting, and shipped in strong packaging.\nThis being the case, it makes sense that ground shipment of used batteries that employ\nless problematic chemistries would be subject to even less regulation. Certainly, shipment of\nthese products for recycling presents no greater hazard than shipment for disposal. Furthermore,\nthe risk of combustion presented by these other battery chemistries is significantly lower than the\nrisk presented by used lithium batteries, whether one considers risks arising from short\ncircuiting, off-gassing, or external causes. In addition, to encourage recycling, it is important\nfrom a policy standpoint that shipping burdens be minimized. Finally, and probably most\nimportant, even if an incident should occur in ground transportation, its implications would be\nfar less troublesome than would arise from an in-flight incident.\nObtaining prompt confirmation from DOT on this issue is especially important to PRBA\nat this time. Serious consideration is being given to expanding industry-wide collection-for-\nrecycling programs from including only nickel cadmium rechargeable batteries to including\nvirtually all rechargeable chemistries. This may not be possible, however, if the result of\nexpansion is to dramatically increase the regulatory requirements applicable to ground shipments\nof collected used batteries.\nOur clients thus would appreciate your prompt confirmation of the fact that DOT is of the\nview that, first, the only requirements applicable to the shipment of used small lithium batteries\nfor recycling are those set forth in 49 C.F.R. § 173.185(h), and second, as long as used dry cell\nbatteries other than used lithium batteries are shipped via ground transportation for recycling or\ndisposal, and are packaged and handled so as to avoid smoke, fire, or resulting personal injury\n(e.g., preventing the combination of flammable materials or allowing off-gassing), no further\nrequirements of the HMR regulations apply.\nThank you.\ncc:\nNorm England, President, PRBA","truncated":false,"body_characters":7638}