{"operation":"document","citation":"00-0303","title":"Currie Associates, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2000-11-07","effective_on":null,"summary":"00-0303 response to Currie Associates, Inc. concerning 172.101.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0303.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0303.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0303","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2000/000303.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh Street, S.W.\nWashinglon, D.C.\n20590\nSpecial Programs\nResearch and\nAdministration\nNOV\n7 2000\nMr. John V. Currie\nPresident\nRef. No. 00-0303\nCurrie Associates, Inc.\n1118 Bay Road\nLake George, New York 12845-4618\nDear Mr. Currie:\nThis is in response to your letter dated October 14, 2000, regarding the definition of a hazardous\nsubstance. Specifically, you ask if a shipment of natural earth with deposits of minerall ores that\ncontain arsenic trisulfide meets the definition of a hazardous substance in 49 CFR 171.8.\nIn your letter, you state that your client is mining an ore that contains 3 to 4 percent arsenic\ntrisulfide and transporting it in \"large dump trucks and dump trailers.\" You state that these\nvehicles often transport several tons of the ore in a single shipment.\nUnder § 171.8, a hazardous substance is defined as a material, including its mixtures and\nsolutions, that: (1) is listed in Appendix A to § 172.101 of the HMR; (2) is in a quantity, in one\npackage, which equals or exceeds its reportable quantity (RQ); and (3) is in a concentration by\nweight which equals or exceeds the concentration corresponding to the RQ of the material, as\nshown in the table under § 171.8.\nArsenic trisulfide has an RQ of one pound. Therefore, a package (e.g., a dump truck or a dump\ntrailer) containing 33.33 pounds or greater of an ore that is 3 to 4 percent arsenic trisulfide would\nmeet the definition of a hazardous substance and would be subject to Hazardous Materials\nRegulations (49 CFR Parts 171-180).\nI hope this satisfies your request.\nSincerely,\nThomas G. Allan\nSenior Transportation Regulations Specialist\nOffice of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\n•\nEgle\nKobAsen\nCURRIE ASSOCIATES, INC.\n172,10/\nTHE GLOBAL COMPLIANCE PROFESSIONALS •\nclassificatia\nMr. Robert A. McGuire\nOctober 14, 2000\nApplicability\nAssociate Administrator, DHM-1\nResearch and Special Programs Administration\n00-6303\nOffice of Hazardous Materials Safety\n20 7th Street SV\nS Department ot Iransportatk\nWashington, DC 20590-0001\nDear Mr. MçGuire:\nI am writing on behalf of a client of Currie Associates, Inc. to request an interpretation\nregarding the applicabilty of the Hazardous Materials Transportation Regulations in Title 49\nof the Code of Federal Regulations in regards to whạt may be considered to be a common\nactivity but which has created some unique considerations as a result of the due diligence of\nmy client.\nThe client engages in mining activities for the purpose of extraction of valuable minerals and\nprecious metals. The activities include the removal of large quantities of natural undisturbed\nearth known to contain deposits of such ores, transportation of the unrefined earth to a\nrefinery site, grinding and extraction of the desired natural resource elements through a\nrefining process, and disposal of the by-products and any resultant wastes.\nMy client, in assaying the stockpiles of natural earth at the mine-site with deposits of mineral\nores has discovered that the ore contains trace amounts of Orpiment (Arsenic trisulfide) as a\nnatural element in the mined earth. I have attached copies ot the laboratory analysis\nconducted at the request of my client that indicates the presence of several natural elements\npresent in the ore. 'The report further suggests that \"elemental arsenic in ores can be\ndisregarded.\" I would agree with the scientific analyst that in most cases the testing for the\npresence of minuscule traces of toxins as natural elements is not even considered since the\ntoxicity of the elements would not be a factor due to the large quantity of dirt that would\nneed to be ingested to reach the lethal dose, and the improbability it not impossibility of\nsuch an occurrence. While the criteria of S173.132 applicable to Class 6.1 is not met, OSHA\nmay exercise jurisdiction over occupational exposure to the long-term chronic effects of\ndusts incurred in the operations.\nHowever, Arsenic trisulfide is listed in Table 1 to Appendix A of $172.101 with a reportable\nquantity of 1 pound or 0.454 kg. The ore that contains the traces of this element is\ntransporting quantities of several tons depending on the capacity of the vehicle and the\ntransported in large dump trucks and dump trailers trom the mine site to the retinery, otten\nweight limit on the highway. Using the table in $171.8 tor detining a hazardous substance\nwith an RQ of 1 pound, the concentration by weight that meets that detinition would be\nRECYCLED\n1118 BAY ROAD • LAKE GEORGE, NEW YORK 12845-4618 • TEL: (518) 761-0668 • FAX: (518) 792-7781\nhttp://www.currieassociates.com\nEmail: currie@netheaven.com\n\n<<<PAGE 3>>>\n\n.0002 percent or 20 parts per million. It is probable that a dump semi-trailer, filled to legal\ncapacity, would contain a quantity exceeding the threshold, based on the laboratory analysis.\nI understand that the regulations of both the DOT and the EPA apply to the by-products\nand wastes resulting from the refining process if they met the classification criteria of Title\n49 and/or Title 40 since they would no longer represent natural elements of our\nenvironment. However, while it seems impractical that the loads of dirt containing the ore\nthat have just been mined from undisturbed earth would then be subject to the CERCLA\nregulations regarding releases back to their origination, it appears that there are no\nprovisions excepting such application: Further, although my client has elected to do so, I\nwould question whether mine operators were under regulatory obligation to conduct testing\nof natural undisturbed earth to determine the presence of regulated substances as natural\nelements.\napplicability of the Hazardous Materials Transportation Regulations (HMR) to these mining\nWe are making a two-told request on behalt ot the client. We ask first that you consider the\noperations based on the test data presented and concur that the materials should not be\nconsidered hazardous in transportation. Are there exceptions to the HMR that would apply\nto the activities at issue?\nSecondly, if you should so find that the HIMR should apply, we would ask that you consider\nthe scientific data and grant an exemption under Part 107, Subpart B, for transporting the\nore from the mine site to the refinery by means of public highway. The exemption request\nwould seek reliet trom the packaging requirements of 173.240(b) requiring sift-proof closed\nvehicles, the shipping paper requirements of Part 172, Subpart C, and the marking\nrequirements of part 172, Subpart D, including $172.302(a). If such an exemption is\nrequired it is requested that it be granted as provided in S107.117 as permitted for emergency\nprocessing, since significant financial hardship will result from the suspending of the mining\noperation which involves transportation of approximately 6400 tons of ore per day.\nAdditionally, numerous employees will be idled pending the outcome. Should this option be\nrequired, my client is prepared to forthwith prepare and submit any application documents\ndeemed appropriate under Part 107.\nYour expeditious response with interpretation is requested. If additional information is\nneeded please do not hesitate to contact me.\nincerely\nthat Carrie\nJohn V. Currie\nPresident\n\n<<<PAGE 4>>>\n\nCURRIE ASSOCIATES, INC.\nTHE GLOBAL COMPLIANCE PROFESSIONALS\nMr. Robert A. McGuire\nOctober 12, 2000\nAssociate Administrator, DHM-1\nOffice of Hazardous Materials Safet\nlesearch and Special Programs Administratio\n400 7ih Street SW\nUS Department of Transportation\nWashington, DC 20590-0001\nDear Mr. McGuire:\nI am writing on behalf of a client of Currie Associates, Inc. to request an interpretation\nregarding the applicability of the Hazardous Materials Transportation Regulations in Title 49\nof the Code of Federal Regulations in regards to what may be considered to be a common\nactivity but which has created some unique considerations as a result of the due diligence of\nmy client.\nThe client engages in mining activities for the purpose of extraction of valuable minerals and\nprecious metals. The activities include the removal of large quantities of natural undisturbed\nearth known to contain deposits of such ores, transportation of the unrefined earth to a\nrefinery site, grinding and extraction of the desired natural resource elements through a\nrefining process, and disposal of the by-products and any resultant wastes.\nMy client, un assaying the stockpiles of natural earth with deposits of mineral ores has\ndiscovered that the ore contains trace amounts of Orpiment (Arsenic trisulfide) as a natural\nelement in the mined earth. I have attached copies of the laboratory analysis conducted at\nthe request ot my client that indicates the presence of several natural elements present in the\nore. The report further suggests that \"elemental arsenic in ores can be disregarded.\" I would\nagree with the scientific analyst that in most cases the testing for the presence of minuscule\ntraces of toxins as natural elements is not even considered since the toxicity of the elements\nwould not be a factor due to the large quantity of dirt that would need to be ingested to\nreach the lethal dose, and the improbability if not impossibility of such an occurrence. While\nthe criteria of $173.132 applicable to Class 6.1 is not met, OSHA may exercise jurisdiction\nover occupational exposure to the long-term chronic effects of dusts incurred in the\noperations.\nHowever, Arsenic trisulfide is listed in Table 1 to Appendix A of $172.101 with a reportable\nquantity of 1 pound or 0.454 kg. The ore that contains the traces of this element is\ntransported in large dump trucks and dump traiers from the mine site to the retinery, often\ntransporting quantities of several tons depending on the capacity of the vehicle and the\nweight limit on the highway. Using the table in $171.8 for defining a hazardous substance\nwith an RQ of 1 pound, the concentration by weight that meets that definition would be\nRECYCLED\n1118 BAY ROAD • LAKE GEORGE, NEW YORK 12845-4618 • TEL: (518) 761-0668 • FAX: (518) 792-7781\nhttp://www.currieassociates.com\nEmail: currie@netheaven.com\n\n<<<PAGE 5>>>\n\n0002 percent or 20 parts per million. It is probable that a dump semi-trailer, filled to legal\ncapacity, would contain a quantity exceeding the threshold, based on the laboratory analysis.\nI understand that the regulations of both the DOT and the EPA apply to the by-products\nand wastes resulting from the refining process if they met the classification criteria of Title\n49 and/or Title 40 since they would no longer represent natural elements of our\nenvironment. However, while it seems impractical that the loads of dirt containing the ore\nthat have just been mined from undisturbed earth would then be subject to the CERCLA\nregulations regarding releases back to their origination, it appears that there are no\nprovisions excepting such application. Further, although my client has elected to do so, I\nwould question whether mine operators were under regulatory obligation to conduct testing\nof natural undisturbed earth to determine the presence of regulated substances as natural\nelements.\nWe are making a two-fold request on behalt of the client. We ask tirst that you consider the\napplicability of the Hazardous Materials Transportation Regulations (FIR) to these mining\noperations based on the test data presented and concur that the materials should not be\nconsidered hazardous in transportation. Are there exceptions to the HMR that would apply\nto the activities at issue?\nSecondly, if you should so find that the HMR should apply, we would ask that you consider\nthe scientific data and grant an exemption under Part 107, Subpart B, for transporting the\nore from the mine site to the refinery by means of public highway. The exemption request\nwould seek relief from the packaging requirements ot $173.240(b) requiring sitt-proot closed\nvehicles, the shipping paper requirements of Part 172, Subpart C, and the marking\nrequirements of part 172, Subpart D, including $172.302(a). If such an exemption is\nrequired it is requested that it be granted as provided in $107.117 as permitted for emergency\nprocessing, since significant financial hardship will result from the suspending of the mining\noperation which involves transportation of approximately 6400 tons of ore per day.\nÁdditionally, numerous employees will be idled pending the outcome. Should this option be\nrequired, my client is prepared to forthwith prepare and submit any application documents\ndeemed appropriate under Part 107.\nYour expeditious response with interpretation is requested. If additional information is\nneeded please do not hesitate to contact me.\nTohn V. Currie\nPresident\n\n<<<PAGE 6>>>\n\nMEMORANDUM\nTO:\nFile 11154\n•\nFROM:\nMI 4168\nDATE:\nSeptember 30, 2000\nCOPY:\nSUBJECT: Arsenic and Silica in U2 Stockpile\nSite submitted three samples from the U2 stockpile for identification of arsenic and\nsilica phases. The first two samples were splits from coarse- and fine-grinds, and the\nthird was made up of coarse (‡0.25\") crystals of the suspected arsenic minerals.\nRepresentative splits of the ground samples were analyzed by XRD-XRF (Tables I and\nIl attached).\nThe coarse crystals were mostly orpiment (yellow, As_S) with minor realgar (red, AsS).\nA prominent X-ray reflection representing orpiment appeared in the XRD pattern, and\nthe count-rates yielded the 3-4% semiquantitative values for orpiment shown in Table I.\n(The amount of orpiment calculated from the XRF As results would be higher.) Realgar\ndid not show up by XRD, indicating <1% quantities, or <25% of the fraction of arsenic as\norpiment, consistent with a visual estimate of the coarse crystals.\nArsenic is likely present also as a low (<2%) substitution in pyrite (FeS2). The 3-4%\nminuscule fraction compared to arsenic as orpiment. Similarly, arsenic may be present\npyrite quantities found by XRD (Table I) would therefore yield <0.1% As as pyrite, a\nas arsenopyrite (FeAsS), but also as a very small fraction of the total. Elemental\narsenic in ores is practically unheard of, and can be disregarded.\nSilica was present only as quartz, which is estimated at ‡70% of the material by XRD.\nIllite and kaolinite also account for some of the SiOz shown in Table II, indicating that\nthe XRD figure for quartz may be somewhat high.\n\n<<<PAGE 7>>>\n\nTable l\nSemiquantitative X-ray Diffraction Analysis of U2 Stockpile\nT-2 STOCKPILE-FINE\nBAR ANHY PYR\nU-2 STOCKPILE-COARSE\nQTZ Quartz\nAPT Apatite\nRUTL Rutile\nILL Illite\nBAR Barite\nORP Orpiment\nKAO Kaolin\nANHY Anhydrite\nCAL Calcite\nPYR Pyrite\nTable Il\nSemiquantitative X-Ray Fluorescence Analysis of U2 Stockpile\nSAMPLE\nSIO2 AL203 FE\nMGO\nCAO NA2O\nK2O\n0-2 STOCKPILE-FINE\nP205\n69.97\n10.31\n2.04\nU-2 STOCKPILE-COARSE\n1.4T\n0.59\n0.48\n68.78\n9.43\n2.24\n0.00\n2.27\n1.30\nS1O2 Silica\nT102 Titanium Oxide\nAL203 Alumina\nCU Copper\nP205 Phosphate\nMO Molybdenum\nFE Iron\nMGO Magnesium Oxide\nS Sulfur\nNI Nickle\nMNO Manganese Oxide\nCAO Calcium Oxide\nBA Barium\nPB Lead\nNAZO Sodium Oxide\nCO Cobalt\nSB Antimony\nK2O Potassium Oxide\nZN Zinc\nCR Chromium\nAS Arsenic\n•\n.......","truncated":false,"body_characters":15072}