We ship empty methyl-ethyl ketone (MEK) containers by truck back to the supplier for refill. Must we classify them as Hazardous Material since the empty containers have only residual amount of MEK left in them, or is there an empty container exemption?
You have asked whether there might be an exemption from the hazardous materials regulations (HMRs) found at 49 CFR 171 to 180 under federal law for the shipment by ground/truck of what you refer to as “empty” containers that held methyl ethyl ketone (MEK).
Requirements for “empty packagings” are set forth at 49 CFR 173.29. The general provision is that an empty packaging (bulk and nonbulk) containing only the residue of a hazardous material must be offered for transportation and transported in the same manner as when it previously contained a greater quantity of that hazardous material. (Note that “empty packagings” is not a defined term under the HMRs.)
There are, however, two exceptions to this general requirement: the first at 49 CFR 173.29(b) excludes the shipment from all HMRs, and the second at 49 CFR 173.29(c) excludes the shipper from only two of the HMRs. As you might expect, it is much more difficult to meet the required standards of the first exclusion than it is to meet those of the second exclusion.
To be eligible for the first exclusion at 49 CFR 173.29(b), all of the following conditions must be met:
- Any hazardous material shipping name and identification number markings, any hazard warning labels or placards, and any other markings indicating that the material is hazardous must be removed, obliterated, or securely covered in transportation. This requirement does not apply to transportation in a transport vehicle or a freight container if the packaging is not visible in transportation and the packaging is loaded by the shipper and unloaded by the shipper or consignee;
- The packaging must be:
– Unused, or
– Sufficiently cleaned of residue and purged of vapors to remove any potential hazard, or
– Refilled with a material which is not hazardous to such an extent that any residue remaining in the packaging no longer poses a hazard; or
– Contain only the residue of an ORM-D material; or Division 2.2 non-flammable gas, other than ammonia, anhydrous, and with no subsidiary hazard, at a gauge pressure less than 200 kPa (29.0 psig); at 20 °C (68 °F)
In addition, to avail yourself of this exclusion, any material contained in the packaging must not meet the definitions in 49 CFR 171.8 for a hazardous substance, a hazardous waste, or a marine pollutant.
The second exclusion at 49 CFR 173.29(c) applies to non-bulk packaging containing only the residue of a Placarding Table 2 material (see 49 CFR 172.504) that is not a material poisonous by inhalation and that is not subject to subsidiary placarding requirements of 49 CFR 172.505. If those conditions are met, the shipment does not have to be placarded. In addition, the residue would not be subject to shipping paper requirements when collected and transported by a contract or private carrier for reconditioning, remanufacture or reuse.
Additional information. The Hazardous Materials Table at 49 CFR 172.101 lists MEK as a Class 3 material with identification number UN1193 and with exceptions at 49 CFR 173.150. Although the HMR exceptions at 49 CFR 173.150(b) for Class 3 flammable liquids and at 49 CFR 173.150(f) for combustible liquids with a flash point at or above 38°C (100°F) are not addressing containers with residues, if you’re not already familiar with them, you may find them worth looking at in terms of determining whether one of these HMR exclusions applies to shipping full containers of MEK.