I have spent the last 25 years of my professional life eating crow. It has a lot to do with the job. At first, it is really hard to eat, but now I don’t mind, even though I have never liked the taste. I think the secret to enjoying crow, is how it’s served to you. See, as an EPA, DOT, OSHA comedian, instructor and publisher, in my small fiefdom, I reign over the hazardous, materials, waste, chemicals and substances requirements. I do this by covering transportation, environmental and worker protection interfaces, inconsistencies and overlaps, which I feel is the critical interface between these three agencies that everyone who uses chemicals must understand when they ship, store, use or dispose of them.

By memory, I can cite the 49 CFR, 172.200 hazardous materials and waste shipping paper regulations.  I am one of a small crowd that knows why DOT, EPA and OSHA all use the term hazardous substance and know every regulation for and differences between an empty drum, in a truck, a spill or in your plant. I know that testing is never required for a 29 CFR OHSA Safety Data Sheet and that the shipping and disposal sections on them is not mandatory and usually incomplete or wrong.

But, I don’t know my wife’s birthday, not sure how old my children are and sometimes I can’t spell my middle name. That is because, my days are immersed in regulatory subchapters, parts, subparts, sections and paragraphs, then at night as I sleep hazardous materials, hazardous substance, hazardous waste, and hazardous chemicals continue to dance in my head.  

For years, I’ve gone to great lengths, in my seminars, to talk about the 49 CFR 172.400, 4x4 inch square EMPTY label under the department of transportation and its use for empty radioactive containers. Often, it is mistaken for a mark but, it is really a label. I was always under the impression that it was only to be used for empty radioactive containers, to be placed over the diamond shaped radioactive hazard Class label when a container that had ‘previously’ contained a Class 7, radioactive material was being shipped back to the original supplier of the material. But, of course I was wrong. I recently found out the EMPTY label can also be used for empty packaging that formerly contained “any” class of hazardous material.

See, at my last seminar in Honolulu, I was approached at the end of the day, by a very good customer, who told me that I might be mistaken about the EMPTY labels uses, and of course not to embarrass me during the course of the seminar she waited until most of the participants had left. Not only that, she said she also had proof, a letter of interpretation that stated that the radioactive EMPTY label could be used on a container that had previously contained a hazardous material, but, now was completely purged and no longer contained any residue of the previous contents.

I quickly scanned her letter of interpretation and told her “she” obviously misread the letter and I dismissed her, then went surfing. Then, three weeks later on my way home from the seminar in Puerto Rico, I found the copy of her DOT letter tucked into my computer bag. Upon further inspection of the letter, to my horror, I found out that she was correct. Apparently the empty label can be used for containers previously containing any hazardous material. I am such an ass.

It seems this letter of interpretation, #01-0169 on August 20, 2001,  by the department of transportation states :

“Specifically, you ask if the empty label required under 173.428 for an empty radioactive material package may be used for a cleaned and purged packaging that formerly contained a non-radioactive hazardous material.” So, “The answer is yes.” A shipper may apply the empty label depicted in § 172.450 to an empty packaging that formerly contained a hazardous material of any hazard class.”

But, what upset me the most, was the fact that I had not looked at nor discussed the letter, at the time it was originally presented to me. See, I wasn’t wrong, the label is “primarily” used for empty radioactive containers.  I was upset because this customer had only taken the time and effort to show me this information to make sure that my future presentations would be correct, where as I thought it was about her, it was about me.

Even worse, a few years ago I had a representative from one of the state environmental protection agency’s tell me that they were handing out and recommending these 49 CFR DOT mandatory EMPTY class 7, shipping labels for designating empty 40 CFR hazardous waste containers, no longer under the 90 or 180 day storage requirements. Signifying that the containers were, at the very least, below the 1 inch, 2.5 centimeter, federal non-acute empty hazardous waste container requirements under the environmental protection agency for hazardous waste generators under 40 CFR 261.7 Residue of hazardous waste an empty containers.  

At the time I had told him they could be only used for empty radioactive containers, which was wrong. However, in retrospect I would still would not recommend using a department of transportation shipping label to meet an environmental protection agency hazardous waste requirement.

Why would you use a DOT empty label on a container that was not regulated by the department of transportation, especially in light of the requirement to use it on empty radioactive containers. It seems crazy to me for someone to go back in to a regulation they are not under to label a container, that is not regulated under that regulation. Then, if these non RCRA empty packaging with residues were shipped off site for any reason, with the EMPTY marks still a fixed, the shipper would be in violation of 49 CFR 173.29 Empty packaging.

So, obviously, I wanted to update at the very least all of the people, I had personally chastised for using the empty mark for anything other than a container that previously contained a radioactive material. But more importantly, I wanted to say thank you to each and everyone of you that has come up to me after a seminar, called or sent me an email to correct “my” incomplete presentation.  

I still have a client, one of my favorites, who I run seminars for every year, that called me up a few days after his last seminar and pretended he did not know the answer to a question on material I had covered in his seminar. I didn’t realize until I got off the phone with him, that he knew the answer but, he really just wanted me to be the best I could be, without humiliating me.

I can’t think of a better way to be served crow.

If you ever have a question, comment or a correction please do not hesitate to contact me.

Thank you for your readership and support.

Robert J. Keegan
Publisher and President
Hazardous Materials Publishing Company