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Interpretation Response #12-0155 ([Scopelitis, Garvin, Light, Hanson & Fears] [Mr. Timothy W. Wiseman, Esq. & Mr. Jeffrey S. Jackson, Esq.])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Scopelitis, Garvin, Light, Hanson & Fears

Individual Name: Mr. Timothy W. Wiseman, Esq. & Mr. Jeffrey S. Jackson, Esq.

Location State: IN Country: US

View the Interpretation Document

Response text:

October 25, 2012


Timothy W. Wiseman, Esq.
Jeffrey S. Jackson, Esq.
Scopelitis, Garvin, Light, Hanson & Fears
10 West Market Street
Suite 1500
Indianapolis, IN 46204

Reference No. 12-0155

Dear Messrs. Wiseman and Jackson:

This is in response to your July 13, 2012 letter concerning the transportation of a hazardous material in a package discovered to be damaged, defective, or leaking at some point while it is in possession of a common carrier by highway (i.e., after the carrier picks up the package from the offeror and before delivering it to the consignee). As we understand the circumstances, when the motor carrier discovers that the package is damaged, defective or leaking (presumably this would occur most often at the carrier"s "local terminal"), the carrier:

" Places the damaged, defective, or leaking packaged in a salvage drum so that the package may be "shipped for repackaging or disposal" in accordance with 49 C.F.R. § 173.3(c).

" Transports the salvage drum and its contents from its local terminal to its "larger hub" facility where the damaged, defective, or leaking package and its contents are evaluated to determine if the material or product is suitable for recycling, donation, or disposal.

" "[U]tilizes a licensed hazwaste transporter and follows applicable state hazardous waste law" when damaged, defective, or leaking "packages must be disposed of from the hub as hazwaste."

Specifically, you ask us to comment on whether "the carrier opens itself up to the state"s hazwaste regulations during the brief period in which it takes steps at its local terminal to utilize the [salvage] drum for continued transportation to the hub." You state that a local municipality takes the position that "the transportation of the shipment actually stops at the local terminal," and the package and its transportation are therefore no longer governed by the HMR. Instead, according to the municipality, the carrier actually holds the package at the local terminal for management as hazwaste and, because transportation of the shipment has purportedly stopped, opens itself up to the application of state and local hazwaste regulations at its local terminal (e.g., those requiring hazwaste generator permits for each local terminal, those requiring the manifesting and transportation of the damaged hazmat packages from each local terminal as hazwaste by a licensed hazwaste transporter, etc.).

We do not agree that under these circumstances, "transportation" stops at the carrier"s local terminal or that the HMR no longer applies to any further movement of the damaged, defective or leaking package or preparation of the package for such further movement. As defined in 49 C.F.R. § 5102(13), ""transportation" means the movement of property and loading, unloading, or storage incidental to the movement." (Emphasis supplied) Between the carrier"s local terminal and its larger hub facility at which the package and its contents are evaluated, the package would clearly be in "movement."

As you describe the situation, the shipment was not consigned to the local terminal or any other facility of the carrier. The package it is still in the possession of the carrier, and it has not been "delivered to the destination indicated on a shipping document, package marking, or other medium." See 49 C.F.R. § 171.1(c) including 171.1(c)(4) (storage incidental to movement). The carrier may become an "offeror" by performing pre-transportation functions to enable onward transportation of the package (for example, by repackaging the hazardous material and preparing shipping papers, which may include a uniform hazardous waste manifest). See 49 C.F.R. §§ 171.8 (definition of "person who offers" or "offeror") and 173.3(c). However, that would not mean that movement of the package from the local terminal to the hub is no longer "transportation" and not subject to the requirements in the HMR.

The authority of a State or local municipality to regulate transportation of hazardous waste is not completely precluded by a finding that the transportation and/or pre-transportation functions are subject to the HMR. Rather, the Resource Conservation and Recovery Act provides that regulations of the U.S. Environmental Protection Agency (EPA) applicable to transporters of hazardous waste must be "consistent with" the HMR, and State hazardous waste programs must be "equivalent to" and "consistent with" EPA"s program. 42 U.S.C. §§ 6923(b), 6926(b). See the discussion in Preemption Determination No. 12(R), New York Department of Environmental Conservation; Requirements on the Transfer and Storage of Hazardous Wastes, 60 Fed. Reg. 62527, 62533 (Dec. 6, 1995), decision on petition for reconsideration, 62 Fed. Reg. 15970 (Apr. 3, 1997), regarding "repackaging" of hazardous wastes at a carrier"s "transfer facility." As noted in that decision, EPA"s authorization of a State program does not "shield[] state regulations touching upon hazardous material transport from possible preemption challenges under" Federal hazardous material transportation law. Id., quoting from the August 17, 1994 letter signed by the Director of EPA"s Office of Solid Waste.

The thrust of your letter appears to be whether a local municipality may impose requirements on the transportation a hazardous material in a damaged, defective, or leaking package from a local terminal to its hub where the package is evaluated to determine whether the material or produce is suitable for recycling, donation, or disposal. This would include consideration of various issues including, among others, the point at which the contents of a damaged, defective, or leaking package become "discarded" and meet the definition of "solid waste" in 40 C.F.R. § 261.2. A full consideration of these issues may require PHMSA to consult and coordinate with EPA and may be better handled in an administrative preemption determination proceeding in response to an application from a person who is "affected" by the State or local requirement in question. See 49 U.S.C. § 5125(d)(1) and 49 C.F.R. § 107.201 et seq.

I hope this responds to your questions. If we can be of further assistance, please do not hesitate to contact me or Frazer C. Hilder in PHMSA"s Office of Chief Counsel.



Delmer Billings
Senior Regulatory Advisor
Standards and Rulemaking Division

173.3, 171.1, 171.8

Regulation Sections

Section Subject
171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions
171.8 Definitions and abbreviations
173.3 Packaging and exceptions