Interpretation Response #00-0235 ([North American Transportation Consultants, Inc.] [Mr. J.P. Gibbons])
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: North American Transportation Consultants, Inc.
Individual Name: Mr. J.P. Gibbons
Location State: NJ Country: US
View the Interpretation Document
Response text:
September 12, 2000
Mr. J.P. Gibbons Ref. No. 00-0235
President, North American Transportation
Consultants, Inc.
P.O. Box 1404
Hightstown, New Jersey 08520
Dear Mr. Gibbons:
This responds to your letter, postmarked August 21, 2000, requesting clarification of the requirements of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the reuse of plastic drums.
For the most part, your understanding of the HMR requirements, as indicated by the numbered statements and questions in the first part of your letter, is correct. Generally, plastic drums intended for reuse must conform to the requirements for reuse of non-bulk packagings in § 173.28, including requirements applicable to leak proofness tests and marking.
Section 173.28(b)(7) authorizes reuse of packagings, including plastic drums, without leak proofness testing provided the packaging is: (1) refilled with a material that is compatible with the original lading; (2) refilled and offered for transportation by the original offeror; and (3) transported in a transport vehicle or freight container under the exclusive use of the refiller of the package. The exclusive-use transport vehicle may be operated by a private, common, or contract carrier; however, the transport vehicle may not contain any material offered for transportation by any person other than the filler of the drums. Under the scenarios you describe in questions 6 and 7 of your letter, the plastic drum may be refilled and offered for transportation without leak proofness testing. However, the exception from leak proofness testing in § 173.28(b)(7) does not apply to the scenario described in question 8 of your letter because storage at a public warehouse, whether in-transit or otherwise, breaks the continuity of closed-loop distribution systems that served as the model for that provision in the HMR.
You ask whether a distribution facility is considered the original offeror or filler for purposes of the exception in § 173.28(b)(7) when a plastic drum is offered for transportation from the distribution facility. The answer is yes, provided that the distribution facility is operated by the same person who
refilled the package. Note that in order to utilize the exception, the transport vehicle must be under the exclusive use of the person who refilled the package. If, in addition to the plastic drum, the transport vehicle contains materials offered by a person other than the refiller of the package, as is the case in the scenario you describe in question I 1, then the transport vehicle is not under the exclusive use of the refiller, and the exception from leak proofness testing in § 173.28(b)(7) does not apply.
You report that recent actions taken by the Environmental Protection Agency (EPA) except certain spent hazardous materials from Hazardous Waste Manifest requirements in 40 CFR part 262. Since EPA-excepted spent materials are not hazardous wastes as that term is defined in § 171.8 of the FINK they may not be offered for transportation or transported to a re-processor under the provisions of § 173.12(c). If you believe that the exception in § 173.12(c) should also apply to spent hazardous materials that do not meet the HMR definition for hazardous waste, it would be helpful if you were to provide support for that proposal by filing a petition for rule-making in accordance with 49 CFR 106.3 1.
I hope this information is helpful. If you have further questions, please do not hesitate to contact this office.
Sincerely,
Edward T. Mazzullo
Director, Office of Hazardous Materials Standards
173.2