PHMSA Response Letter

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January 05, 2016

Ms. Nancy Fitz
Office of Pesticide Programs (7506P)
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Reference No. 14-0215

Dear Ms. Fitz:

This is in response to your e-mails and telephone conversations with members of my staff in which you requested clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to drum and ball-shaped tanks attached to trailers. Specifically, you ask if these tanks may be used to deliver liquid pesticides to farmers and if they are non-specification tanks under the HMR.

In your letter, you included photographs and descriptions of several bulk ball and drum tanks attached to trailers, which we have summarized in the table below, and information on their size and capacity.

You also provided a website link to safety data sheets (SDS) from several companies for "Atrazine 4L." You described this material as a typical herbicide product transported in the above-described tanks and drums. These SDS's described Atrazine 4L, depending on chemical composition, as being non-hazardous when shipped in non-bulk packages by highway, not regulated in any mode of transportation, and a possible hazardous substance if ethylene glycol in the mixture exceeds quantity of 5,000 pounds per package. The SDS also states this material is slightly toxic to fish and invertebrates, very toxic to aquatic life with long lasting effects, and as possibly meeting the definition of a marine pollutant. In addition, the SDS states Atrazine 4L is regulated as "NA 3082, Environmentally hazardous substance, liquid, n.o.s. (Atrazine), 9 (miscellaneous), Packing Group (PG) III" when transported by rail and when transported by vessel, and as "UN 3082, Environmentally hazardous substance, liquid, n.o.s. (Atrazine), Marine Pollutant,9, PG III" when transported by aircraft. The SDS's also described Atrazine 4L as not being an Environmental Protection Agency (EPA) listed waste or as having an EPA Resource Conservation and Recovery Act characteristic.

Further, you state the containers you described also transport petroleum-derived spray-oil, agricultural crop protectants with the following product names, for which you also supplied SDS's: 440 Superior Spray Oil, Citri-Oil, Hort Oil 98-2, Ortho Volck Supreme Spray, Superior Spray Oil, Supreme Oil, and Volck Supreme Spray. You further state none of these materials you described are classified as a Department of Transportation (DOT) hazardous material. In addition, you enclosed an article entitled "Petroleum-derived spray oils: chemistry, history, refining, and formulation," written by Arthur M. Agnello, Department of Entomology, Cornell University, New York State Agricultural Experiment Station Geneva, New York 14456, for the book entitled "Spray oils beyond 2000: Sustainable pest and disease management: Proceedings of a conference held from 25 to 29 October 1999 in Sydney, New South Wales, Australia." Your questions are paraphrased and addressed below.

Q1. Are these trailer tanks considered portable tanks under the HMR?

A1. The information and photographs you supplied did not provide enough information to answer this question. However, based on the information you did provide, some of the containers appear to be permanently attached to their trailers while others do not. It is the opinion of this Office that the tanks you describe that are not permanently attached to their trailers may meet the definition of a non-DOT specification portable tank. The HMR define a portable tank in part as a bulk packaging designed primarily to be loaded onto, or on, or temporarily attached to a transport vehicle or ship and equipped with skids, mountings, or accessories to facilitate handling of the tank by mechanical means (see § 171.8). The requirements of a DOT specification portable tank are referenced in 49 CFR Part 178, Subpart H.

It is also the opinion of this Office that the tanks you describe that are permanently attached to their trailers may meet the definition of a non-DOT specification cargo tank or cargo tank motor vehicle. The HMR define a cargo tank in part as a bulk packaging intended primarily for the carriage of liquids or gases and includes appurtenances, reinforcements, fittings, and closures and is permanently attached to or forms a part of a motor vehicle, or is not permanently attached to a motor vehicle but which, by reason of its size, construction or attachment to a motor vehicle is loaded or unloaded without being removed from the motor vehicle (see § 171.8). The requirements of a DOT specification cargo tank motor vehicle are referenced in 49 CFR Part 178, Subpart J.

Further, it is the opinion of this Office that the drums you describe are non-specification bulk packagings that must comply with 49 CFR Part 173, Subparts A and B, when used to transport hazardous materials in commerce. Materials that do not meet the definition of a hazardous material in § 171.8 are not subject to the HMR and, therefore, are not required to be placed in HMR-authorized packagings when transported in commerce.

Q2. Are these non-DOT specification tanks suitable for the transport of liquids?

A2. As stated earlier, the information and photographs you supplied did not provide enough information to answer this question. However, the HMR require all bulk packagings that transport hazardous materials in commerce to comply with the packaging requirements in 49 CFR Part 173, Subparts A and B, and specifically § 173.24 for all packagings and § 173.24b for bulk packagings. Non-specification portable and cargo tanks must also comply with applicable HMR requirements for the materials they transport. See also § 173.5; 49 CFR Part 180, Subpart E, "Qualification and Maintenance of Cargo Tanks"; and 49 CFR Part 180, Subpart G, "Qualification and Maintenance of Portable Tanks." Please note that cargo tanks built to an American Society of Mechanical Engineers (ASME) specification not incorporated by reference in the HMR are not authorized packagings, and cannot be used to transport hazardous materials unless approved under the terms of a special permit.

Q3. If these trailer tanks are bulk packagings that do not meet Packing Group III performance standard requirements for intermediate bulk containers, can they be used to transport pesticides that are not hazardous materials?

A3. Yes. Pesticides that do not meet the definition of a hazardous material are not subject to the HMR. Therefore, the packaging provisions in our regulations do not apply.

I hope this satisfies your request.

Sincerely,

T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division

171.8, 173.24, 173.24b, 173.5