# Regulatory Resources, Inc. — Hazardous Materials Safety Interpretation

- **operation:** document
- **citation:** 03-0037
- **title:** Regulatory Resources, Inc. — Hazardous Materials Safety Interpretation
- **source type:** guidance
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** guidance
- **official:** true
- **published on:** 2006-01-12
- **effective on:** Not available
- **summary:** 03-0037 response to Regulatory Resources, Inc. concerning 172.101.
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- **markdown:** https://regulus.evalyn.ai/document/phmsa-interpretation-03-0037.md
- **app url:** https://regulus.evalyn.ai/document/phmsa-interpretation-03-0037
- **source url:** https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030037.pdf
**body:**

<<<PAGE 1>>>

of Transportation
J.S. Department
400 Seventh Street, S.W.
Washington, D.C. 20590
Pipeline and
Administration
Hazardous Materials Safety
JAN 12 2006
Mr. Wade A. Winters, CET, CHMM
President
Ref. No.: 03-0037
240 Joshua Road
Regulatory Resources, Inc.
Kennewick, WA 99338
Dear Mr. Winters:
This is in response to your letter dated January 23, 2003, concerning requirements in the
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) for determining the appropriate
reportable quantity (RQ) for a hazardous waste. I apologize for the delay in responding to your
inquiry.
In your letter, you question this office's previous interpretations on the appropriate RQ for a
hazardous waste for which the constituents are known but specific percentages are unknown.
You state that our previous interpretations on this topic are inconsistent with interpretations and
guidance issued t? the U.S. Environmental Protection Agency (EPA).
In past interpretations, we have stated that if the constituents of a hazardous waste and its
that if the hazardous waste's constituents or their respective concentrations are unknown, then
concentrations are known, then the RQ for the constituent is appropriate. We have also stated
the appropriate RQ is that which is assigned to the hazardous waste.
You are correct that EPA interpretations and guidance state that, for a hazardous waste for which
all of the constitu. ts are known but their respective concentrations are unknown, ..uRQ for the
constituent should be used. Therefore, we are revising our previous guidance on this issue. To
determine the RQ for a hazardous waste for which the constituents are known, but their
respective concentrations are unknown, you should apply the total amount of the hazardous
waste in the packaging to the individual constituents to determine if an RQ has been met.
I appreciate your bringing this inconsistency to our intention. We will make every attempt to
ring this change in policy to the attention of the regulated community. Please contact us if you
equire additional assistance
Sincerely,
172.101
Susan Gorsky
Acting Director
Office of Hazardous Materials Standards
030037

<<<PAGE 2>>>

Belertord
§172.101
Hazardous Substance
Kennewick, WA 99338
240 Joshua Road
voice: 509-628-1020
03-0037
www.regulatoryresources.net
fax: 509-628-0972
January 23, 2003
Director
Mr. Edward Mazzullo,
Office of Hazardous Materials Standards (DHM-10)
U.S. Department of Transportation
Research and Special Programs Administration
Washington, DC 20590-0001
400 Seventh Street, SW
Dear Mr. Mazzullo,
Regulatory Resources, Inc. (RRI) is a consulting and training company serving clients subject to the
Department of Transportation (DOT) Hazardous Materials Regulations (HMRs) and the Environmental
regulations are referenced by these, one being the requirements for reporting hazardous substances as
Protection Agency (EPA) solid and hazardous waste management regulation. Naturally, other federal
required by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
We at RRI believe it is imperative that both the CERCLA and DOT's Research and Special Programs
Administration (RSPA) apply the hazardous substance reportable quantity determinations in the same
manner. For RSPA to impose differing RQ determinations places a tremendous and unnecessary burden
on consignors and carriers. Based on the letters from RSPA referenced in this request for clarification, a
consignor and carrier must designate a hazardous substance according to RSPA application and then
provide a completely new determination for actual CERCLA reporting. I find this to be in conflict with the
statement made in 49 CFR 172.101, Appendix A, paragraph 1, second sentence:
"This listing fulfills the requirements of CERCLA, 42 U.S.C 9656(a), that all "hazardous
substances" as defined in 42 U.S.C. 9601(14), be listed and regulated as hazardous
materials under 49 U.S.C. 5101-5127." (emphasis added)
hazardous substances and the establishment of the reportable quantity (RQ) values. For the purpose of
Before we can present our concerns, RRI believes it is important to provide a brief background of
the background information, the term "chemical" includes compounds of chemicals, and the implying
release or potential release of a hazardous substance assumes release within a 24 hour period.
Background
To provide an effective and comprehensive response to the problems caused by releases of hazardous
Act of 1980 (amended in 1986). In this Act, Congress defined a hazardous substance (section 101(14))
substances, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability
to include "...any hazardous waste having the characteristics identified under or listed pursuant to section
3001 of the Solid Waste Disposal Act..." To ensure that the EPA acted in a timely manner incorporating the
requirements of the Act, Congress established a "hammer" date that set statutory RQ values for hazardous
substance for which RQ values were not yet established. The EPA has since developed and revised the
modeling program that evaluates a given chemical and determines its RQ value based on various criteria.

<<<PAGE 3>>>

40 Joshua Roa
egulatory Resources, In
Voice: 509-628-102
Kennewick, WA 99338
www.regulatoryresources.net
ax: 509-628-093
January 23, 2003
Mr. Edward Mazzullo
Page 2 of 8
Therefore, chemicals specifically listed on the CERCLA Hazardous Substance list in 40 CFR 302.4 have an
RO value established either through specific modeling results or statutory requirement (I believe many are
now based on modeling results).
Establishing an RQ Value
The RQ for a given chemical is determined based upon the intrinsic properties of the chemical. These
include aquatic toxicity, mammalian toxicity (oral, dermal and inhalation), ignitability, reactivity, chronic
toxicity (including neurotoxic effect), and potential carcinogenicity. Intrinsic properties are termed "primary
criteria."
Generally, for each primary criteria, EPA ranks the chemical on a scale. The data for the chemical are
the primary criteria RQ for that chemical. Two factors play into this rating value, one being the dose that
evaluated leading to different values for each specific criteria. The lowest of the tentative RQs becomes
causes a particular effect and the other based on the severity of the effect. The product of the dose and
1-100.
effect rating (both using a 1-10 rating scale where 10 is the most toxic) yields a composite score between
The EPA also considers bioavailability when determining RQ values. Bioavailability represents the rate and
by various routes, such as ingestion. (Solubility, as used in context to bioavailability is different insomuch
extent to which a chemical is absorbed or otherwise assimilated into the body tissue following exposure
as solubility refers to the degree to which a material dissolves in the gastric fluid of the stomach.)
After primary criteria are assigned, EPA further evaluates the chemical on its susceptibility to certain
degradative processes, i.e., secondary criteria. If the chemical, when released into the environment,
level (e.g., from 4.54 kg to 45.4 kg). However, if the chemical degrades to a more hazardous product after
degrades at a relatively rapid rate to a less hazardous form, its primary RQ value may be raised one RQ
its release, an adjusted RQ may be assigned lower than that obtained for the primary RQ.
In summary, the value assigned a given hazardous substance is not a random selection but rather is a
value based on research and modeling results.
Identity of Listed and Unlisted Hazardous Substances
In 40 CFR 302.4 (a), EPA defines Listed Hazardous Substances to include "...the elements and compounds
and hazardous wastes appearing in Table 302.4.." (emphasis added). This definition encompasses all
materials, including hazardous wastes identified by name in the §302.4 Table. The fact that a chemical
listed by name may also be designated as a RCRA hazardous waste (e.g., waste codes assigned) is
irrelevant in how it is identified in the $302.4 Table.
For "unlisted" hazardous substances, 302.4(b), states "...a solid waste, as defined in 40 CFR 261.2, which
is not excluded from regulations as a hazardous waste under 40 CFR 261.4(b), is a hazardous substance
under section 101(14) of the Act if it exhibits any of the characteristics identified in 40 CFR 261.20 through

<<<PAGE 4>>>

Regulatory Resources, Inc
Kennewick, WA 99338
240 Joshua Road
Voice: 509-628-1020
www.regulatoryresources.net
Fax: 509-628-0972
Mr. Edward Mazzullo
January 23, 2003
Page 3 of 8
regulations per §261.4(b) is an "unlisted" hazardous substance if: (1) the chemical name is not found in
261.24." Therefore, a hazardous waste which cannot be excluded from RCRA waste management
the list of hazardous substances, and (2) the waste exhibits a characteristic of ignitability, corrosivity,
reactivity, or toxicity ("D" coded waste).
Since the definition of "listed hazardous substance" specifically includes hazardous wastes, acetone
Based on these two definitions, acetone (listed by name at 2270 kg) is a "listed" hazardous substance.
remains a listed hazardous substance even though it carries the characteristic of ignitability in 40 CFR
261.21 when a hazardous waste. Therefore, acetone cannot become an "unlisted" hazardous substance
until such time EPA removes acetone from the §302.4 list of hazardous substances.
Isoamyl alcohol is not listed in the §302.4 Table. As a material, this chemical is not a hazardous substance.
(D001). Because Congress specifically stated that all RCRA hazardous waste must be included as
As a hazardous waste, isoamyl alcohol meets the defining criteria for the RORA characteristic of ignitability
hazardous substances, isoamyl alcohol, when a hazardous waste, becomes a hazardous substance
based on the "unlisted" application.
The RQ value for a hazardous substance is based, if not by the "harmer" provision, on results generated
chemical is a product or waste; the regulatory status of the chemical has no bearing on the characteristics
through specific modeling - primary and secondary criteria. This criteria is impartial to whether the
of the chemical. Hence, the primary and secondary criteria results obtained through modeling is not
affected by the regulatory definition (i.e., material or waste) of the chemical.
RQ Value Assignment
substance, §302.5(a) specifically states, "The quantity listed in the column "Final RQ" for each substance
Assignment of an RQ value to a hazardous substance is defined in 40 CFR 302.5. For a "listed" hazardous
in Table 5302.4... is the reportable quantity (RQ) for that substance." Based on 5302.1, a "substance" (i.e.,
No exceptions to this statement are presented in §302.5.
listed substance in this context) is the element, compound and hazardous waste listed in Table $302.4.
The RQ value assigned for an "unlisted" hazardous substance is addressed in §302.5(b), "Unlisted hazardous
substances designated by §302.4(b)..." This introductory statement specifically identifies that the
assignment of an RQ value for unlisted hazardous substance applies only to RCRA hazardous wastes
designated with a "D" waste code and for which are not specifically "listed" in the §302.4 Table.
It is important to recognize that the assignment of a waste code to a RCRA hazardous waste is to address
and assianments are not a consequence of any requirement or action under CERCLA.
the proper management and disposal of that hazardous waste as defined in RCRA. Waste code criteria

<<<PAGE 5>>>

Red Joshua Rearces, InC.
Voice: 509-628-1020
Kennewick, WA 99338
www.regulatoryresources.net
Fax: 509-628-097
January 23, 2003
Mr. Edward Mazzullo
Page 4 of 8
Determination for Notification
substance is released into the environment. For example, a release of at least 2,270 kg of acetone to the
Notification of a release of a hazardous substance is made whenever the RQ amount of a hazardous
environment (including a containerized spil) within a 24-hour period is a release of an RQ amount of the
hazardous substance acetone.
To determine if notification is required for releases of mixtures and solutions of hazardous substances,
CERCLA applies the "mixture rule" [40 CFR 302.6(b)(1)(i)]. The use of the mixture rule hinges on knowing the
concentration of constituents present within the mixture. If concentrations are known; the mixture rule
released in an amount greater than or equal to its RQ. Under this rule, hazardous substances are not
provides that releases must be reported as soon as a component hazardous substance of the mixture is
additive. For example, if one-half of an RQ of each of two hazardous substances in the mixture is released,
CERCLA hazardous substance notification is not required.
If the specific concentrations of the hazardous substance constituents) in the mixture are not known, a
release must be reported when the amount released of the constituents) comprising the unknown
example, two constituents comprise a five pound mix. The RQ value for the constituents is one pound and
concentration of the mixture reaches the RQ for the hazardous substance having the lowest RQ. For
required based on the constituent with the one pound RQ value.
ten pounds. If one pound or more of the mixture is released into the environment, an RQ notification is
The application of the CERCLA mixture rule does not affect the designation of "listed" or "unlisted"
to a given hazardous substance (40 CFR 302.5)
hazardous substances (40 CFR 302.4), nor does it in any way alter the designation of the RQ value assigned
Application to the DOT HMRS
The requirements for determining an RQ for purpose of DOT regulations is located in $171.8 and §172.101,
Appendix A. The requirement to assign the RQ value is addressed in 5172.101, Appendix A, paragraph 1,
materials..." (codified in 40 CFR 302.4 and 302.5). The criteria to determine if a release of an RQ amount
"...that all hazardous substances as defined in 42 U.S.C. 9601(14) be listed and regulated as hazardous
is a release requiring notification (e.g., an RQ in a single package) is addressed in 40 CFR 302.6 and 49
CFR 171.15.
Three letters issued by RSPA concerning the assignment of RQ values to hazardous waste has confused this
subject since they do not agree with RI's understanding of the CERCLA process for identifying the
hazardous substance and assigning the RQ value. These letters are Reference Nos. 99-0145 (June 28,
for your convenience.
1999); October 21, 1997 (Mr. Bill Barrow); and 02-0111 (September 11, 2002). All three letters are enclosed

<<<PAGE 6>>>

R4o aty Resources, In
Voice: 509-628-102(
www.regulatoryresources.net
Fax: 509-628-097:
Mr. Edward Mazzullo
January 23, 2003
Page 5 of 8
Reference No. 99-0145 (June 28, 1999) and Letter to Mr. Bill Barrow (October 21, 1997)
The June 28, 1999, letter lists eight questions (Q) with RSPA's responses (A). Questions 7a and 7b
trichloroethylene, F001 and F002, respectively. Please note that 1,1, 1-trichloroethane (RQ= 1000
concern RQ issues. In question 7a, RSPA is presented a scenario with 1,1,1-trichloroethane and
pounds) and trichloroethylene (RQ=100 pounds) are both listed hazardous substances. The letter
states:
Q7a.
"..If the actual concentration is not known, then the reportable
quantity for the entry F001 and F002 would be the threshold for
determining if the material is a hazardous substance. Is this correct?
A7a.
076.
"Use the same scenario as in 7(a) above except that the
concentrations of each constituent is not known to be within
specified range. In this case, would I calculate the highest range
limit for each constituent and use that to determine if there is a
A7b.
reportable quantity for the entry F001 or F002 is the threshold for
known only approximately or within a specified range, the
Based on RRI's understanding, the CERCLA determination for the identity of a hazardous substance
are the April 4, 1985, RQ final rule; EPA guidance publication, "Questions and Answers on Release
and the assignment of the RQ value differs from RSPA's responses. The resources for this conclusion
Notification Requirements and Reportable Quantity Adjustments", Publication 9360.7-14, PB 94-
963403, EPA/540-R-94-005; and subsequent conversations with the EPA Hotline CERCLA group. We
believe, if a given constituent is listed in the list of hazardous substances, the RQ value used is that
associated with the listed constituent. The fact that the listed constituent is also a hazardous waste
(RCRA) is not relevant in assigning the RQ value [40 CFR 302.4(a) and (b), and 40 CFR 302.5(a) and
(b)]. For example, both 1,1,1-trichloroethane and trichloroethylene are listed on the hazardous
substance list. Therefore, the RQ value assigned to each constituent, regardless of applicability to
concentration of the constituent. The CERCLA mixture rule addressed in 40 CFR 302.6(b)(1)( is used
RCRA, is the listed value. The "assignment" of the RQ value has nothing to do with knowing the
for known concentrations. If any one or more of the hazardous constituents of the mixture or solution
value. When to report the release of an RQ amount, as supported in 49 CFR 171.15, is found in 40
are unknown, then the applicability of release reporting is affected, not the assignment of the RQ
CFR 302.6.

<<<PAGE 7>>>

240 Joshua Road
Regulatory Resources, Inc.
oice: 509-628-102
Kennewick, WA 99338
www.regulatoryresources.net
ax: 509-628-097
Mr. Edward Mazzullo
January 23, 2003
Page 6 of 8
or contains unknown constituents (unknown wastes present other concerns beyond CERCLA, and is
The only time the F001 or F002 code is used as the "default" RQ, value is if the waste itself is unknown
not consistent with proper waste management operations). Therefore, based on our understanding
of 40 CFR 302, the hazardous substance identity in Q7a and Q7b is the listed hazardous substance
based on the "assigned" RQ for each listed hazardous substance. The fact that the actual
(e.g., 1,1,1-trichloroethane at 1,000 pounds and trichloroethylene at 100 pounds). The RQ value is
concentration is not known does not alter the identity or reassign the RQ value of the hazardous
substance.
The second letter, dated October 21, 1997 again concerns the selection of the RQ value based on
1,1,1-trichloroethane, a listed hazardous substance with an RQ of 1000 pounds. Below is an excerpt
the waste constituent or the applicable waste stream. An example was provided in this letter using
from the letter:
"...1,1,1-trichloroethane is the only constituent and its concentration in a mixture or
solution is known, then the RQ for 1,1,1-trichloroethane is appropriate. However, if the
waste's constituent or its respective concentration is unknown, then the appropriate RQ
is that which is assigned to the waste stream. For example, 10 lbs. is the appropriate RO
for
wastes included under Waste Stream F001 (the waste stream for
1,1,1-trichloroethane)." (emphasis added)
Again, our conclusion (and that of the CERCLA hotline) differs from your view that the RQ value for the
1,1,1-trichloroethane and trichloroethylene is based on the waste code F001 and F002, respectively.
listed RQ value is assigned to each, the reporting requirement is based on the constituent's listed RO
Rather, since both hazardous constituents are listed by name in the hazardous substance list and a
value and not the default "F" waste code value. It is our understanding the only time the default "f"
waste.
waste code RQ value is used for assignment of the RQ value is if the waste is, or contains, an unknown
the CERCLA mixture rule as integrated into the DOT regulations
The following conclusions are provided based on our research of RQ designation and applicability of
A.
A package contains an F001 and F002 waste consisting of 150 pounds of
Al'East
by name on the hazardous substance list [40 CFR 302.4(a)] and are assigned their
1,1, 1-trichloroethane and 150 pounds of trichloroethylene. Both constituents are listed
respective RQ values of 1000 pounds and 100 pounds |40 CFR 302.5(a)]. For EPA
release reporting and DOT transport purposes, an RQ is present for the trichloroethylene
Gent
(49 CFR 171.8).
B.
A package contains an F001 and F002 waste consisting of 1,1,1-trichloroethane and
trichloroethylene. The net weight of the waste is 300 pounds. The identity of all
constituents are known, however, the concentration of each is unknown [40 CFR
Ecol - 10
111-
1000
tillere - 100

<<<PAGE 8>>>

240 atua Resources, InC.
Voice: 509-628-1021
Kennewick, WA 99338
www.regulatoryresources.net
Fax: 509-628-097:
Mr. Edward Mazzullo
January 23, 2003
Page 7 of g
302.6(b)(1)(ii)]). Both constituents are listed by name on the hazardous substance list (40
CFR 302.4(a)) and are assigned their respective RQ values of 1000 pounds and 100
pounds [40 CFR 302.5(a)]. For EPA release reporting and DOT transport purposes, ar
RO is present for the trichloroethylene (49 CFR 171.8)
C. A package contains an unknown waste, net weight of 300 pounds. Halogenated
hydrocarbons used in large scale and small scale degreasing operations (e.g., used
as a solvent) are suspected based on process knowledge. The waste is, therefore,
All
assigned waste codes F001 and F002. No other information is available on the waste
Good
the F001 and F002 waste codes each at 10 pounds. Concentrations of the unknown
at this time. Since the constituents are not known, the RQ value assigned is based on
used [40 CFR 302.6(b)(2)(i)] and an RQ exists for both F001 and F002.
constituents cannot yet be obtained, therefore, the CERCLA mixture rule cannot be
A package contains some trichloroethylene and other constituents yet to be
determined. The net weight is 300 pounds. Halogenated hydrocarbons used in small
knowledge. The waste is, therefore, assigned waste codes F002 and D040. No other
scale cleaning operations (e.g., used as a solvent) are suspected based on process
wrony,
information is available about the waste at this time. Since the concentration of the
constituents is not known, the CERCLA mixture rule cannot be employed. However, one
PerEPA.
constituent (tichoroethylene) of the mixture is known to be a listed hazardous 5'r C. you
substance, therefore, the constituent and its assigned RQ value (100 pounds) apply.
The remaining constituents are not yet known. Forthese unknown constituents, the RO it e. A knom
for trichloroethylene and F002.
assigned to each given waste stream (e.g, F002) applies. Hence, this waste is an RQ
cansittuent,
provide clarification for your RQ value assignment and determination processes and provide any
Please provide comments for the above scenarios (A, B, C, and D). Since our views differ, would you
information that indicates RSPA's authority to change the identity of the hazardous substance and its
assigned RQ value.
Reference No. 02-0111 (September 11, 2002)
The September 11, 2002 letter lists three specific questions concerning RQs. Question 2 states:
Q2: "A D001 hazardous waste contains water and Ethyl cyanide, also known as
"Propionitrile, 3, 6.1, UN 2404, PG II." The concentration of Ethyl cyanide
is not known. Its RQ is 4.54 kg (10 pounds). The net weight of the waste per
contain an RQ of Ethyl cyanide, my company does not know what specific
package is 25 pounds. Although it is possible the mixture in one package may
amount or maximum concentration is present. Should we use the RQ of 45.5
kg (100 pounds) or the RQ for Ethyl cyanide to determine if the waste is a
hazardous substance?"

<<<PAGE 9>>>

egulatory Resources, In
Voice: 509-528-1020
www.regulatoryresources.net
Fax: 509-528-0972
January 23, 2003
Mr. Edward Mazzullo
Page 8 of 8
A2: "Because the concentration of the waste constituent is unknown, the RQ for
D001 must be used."
RRI does not agree with RSPA's conclusion. Ethyl cyanide is a "listed" hazardous substance [40 CFR
water mix is not known does not alter its listed identity or assigned RQ value. We agree the CERCLA
302(a)] with an assigned RQ value of 10 pounds. The fact that the amount of ethyl cyanide in this
mixture rule cannot be employed. Therefore, an RQ exist in this package for the "listed" hazardous
substance at its 10 pound RQ value. The waste code D001 has no applicability to this RQ
determination.
Based on RSPA's conclusion, if a package of this ethyl cyanide/water mix were to release at least 10
pounds of contents to the environment (in a 24 hour period), a notification to the National Response
would violate 40 CFR 302.6 and subject the person responsible for notification to CERCLA criminal
Center for release of an RQ amount of a hazardous substance is not required. This lack of action
enforcement action in 40 CFR 302.7.
question 2 and the citation that grants RSPA the authority to change the CERCLA hazardous substance
We request RSPA to provide an explanation of the RQ determination process used in response to
identity and assigned RQ value.
Dr. Muzzulo, RRI believes it is imperative that RSPA and CERCLA work to arrive at a single application for
letters, is providing consignors and carriers a false sense of security. If they comply based on letters from
hazardous substance determinations. Conflicting designation criteria, as illustrated in the referenced RSPA
package for hazardous substances based on CERCLA regulations and then again based on RSPA's
RSPA they may violate CERCLA reporting requirements. Currently, a consignor and carrier must check each
application of CERCLA's requirements, an application RRI believes is inconsistent with the regulations in 40
Thank you for the opportunity to submit this letter of clarification. RRI looks forward to your timely reply.
For Regulatory Resources, Inc.,
President
Wade A. Winters, CET, CHMM
WAW/lom
Enclosed:
Letter, June 28, 1999, Reference No. 99-0145
Letter, October 21, 1997 (Mr. Bill Barrow)
Letter, September 11, 2002, Ref No. 02-0111
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