{"operation":"document","citation":"03-0049","title":"Latham & Watkins LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-05-20","effective_on":null,"summary":"03-0049 response to Latham & Watkins LLP concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0049.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0049.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0049","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030049.pdf","body":"<<<PAGE 1>>>\n\nOransportion\n400 Seventh St., S.W.\nWashington, D.C. 20590\nSee programs\ndministratior\nMAY 20 2003\nMr. Kelly E. Richardson\nLatham & Watkins LLP\nReference No.: 03-0049\n701 B Street, Suite 2100\nSan Diego, CA 92101-6197\nDear Mr. Richardson:\nThis responds to your January 29, 2003 letter regarding the applicability of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) to the transportation of certain\nultracapacitors. Your letter states that the ultacapacitors, which are approximately the size of a\nquarter, are comprised of a sealed steel container that encloses layers of activated carbon, metal\nand plastic. The activated carbon is saturated with an electrolyte solution and the electrolyte\ncontains quaternary salt and a small amount (1.5 grams or less) of acetonitrile. The\nultracapacitors in question are the Maxwell models PC-5 and PC-10. You also submitted\nphotographs and a test report from Underwriters Laboratories, Inc. Specifically, you ask whether\nthe ultracapacitors are subject to the HIMR. I apologize for the delay and any inconvenience it\nmay have caused.\nBased on the information you provided, it is our determination that 1.5 grams or less of\nacetonitrile in a sealed steel container is in a quantity and form that does not pose a hazard in\ntransportation. Therefore, the ultacapacitors are not subject to the HMR.\nI hope this satisfies your request.\nSincerely,\ntable z mitched\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n030049\n\n<<<PAGE 2>>>\n\nDirect Dial: (619) 238-2876\n701 ฿ Street, Suite 2100\nkelly.rchardson@lw.com\nCorbin\nSan Diego, Califomia 92101-8197\nwww.tw.com\nTel: (619) 236-1234 Fax: (619) 696-7419\nLATHAM&WATKINSUP\nBoston\nNow Jorday\nShipper's Responsibility\nChicago\nBrussels\nNew York\n03-0049\nFrankfurt\nNorthern Virginia\nHamburg\nOrange County\nJanuary 29, 2003\nHong Kong\nParis\nLos Angeles\nLondon\nSan Diego\nTokyo\nSingapore\nSilicon Valley\nSan Francisco.\nEdward Mazzullo\nMilan\nMoscow\nDirector\nWashington, D.C.\nRSPA Office of Hazardous Materials Standards\nFile No. 021083-0013\n(DHM-10)\n400 Seventh Street, SW\nU.S. Department of Transortation\nWashington, DC 20590\nRe:\nMaxwell Technologies Ultracapacitors\nRequest for Written Interpretation (49 CFR Section 107.14)\nDear Mr. Mazzullo:\nMaxwell Technologies (\"Maxwell\") has developed innovative energy storing double-layer\ncapacitors (\"ultracapacitors\") for use in applications ranging from hand-held electronic devices to energy\nefficient hybrid-clectric vehicles. Pursuant to 49 CFR Section 107.14, Maxwell requests a written\ninterpretation from the U.S. Department of Transportation (\"DOT\") finding that certain ultracapacitors of\nfinite weight are not subject to the hazardous materials laws and regulations set forth af 40 CFR Sections\n171-180.\nThis request pertains to (i) two specific ultracapacitor models that are the size of postage stamps\nin weight and containi no more than 1.5 grams of absorbed actonitrile? See Exhibit \"A\" (photograph).\nand (ii) any structurally identical upgraded models under development that are limited to 10 grams or less\nBased on a substantial amount of analytical data, transporting ultracapacitors with the particular amount\nand form of the hazardous material (e.g., acetonitrile) does not pose an unreasonable risk to health and\nsafety or property under 49 U.S.C. Section 5103(a).\nUNI 673\n1\nSee http://www.maxwell.com\n2\nThis request pertains to Maxwell ultracapacitor model numbers \"PCS\" and \"PC10.\" Although\nhese models outlined in Sections B and C of this letter is expected to remain substantially the\nnodel numbers may change as a result of marketing dynamics and other factors, the design o\nrequest pertains to ultracapacitors of limited weight and hazardous substance content, as defined\nsame. Accordingly, this request does not apply to all Maxwell ultracapacitors; rather, Maxwell's\nherein.\nSD1365915.8\n\n<<<PAGE 3>>>\n\nJanuary 29, 2003\nRSPA Office of Hazardous Materlals Standards\nPage 2\n• LATHAM&WATKINSUP\nA.\nBackground\nUltracapacitors can vary in physical dimensions and weight, depending upon the energy storage\ncapacity required. Maxwell models PC-5 and PC-10 are thin quarter-sized rectangular devices. The\napproximate dimensions of these models are 0.75 in. (width) × 1.0 in. (length) × 0.25 in. (thickness). The\ntotal weight of each device is approximately 4-7 grams, depending on the model. Maxwell anticipates\nthat it may upgrade existing models to 10 grams. The ultracapacitors at issue are comprised of primarily\nnon-hazardous materials metal and plastic. The ultracapacitors do contain a single hazardous material -\nacetonitrile -- in amounts ranging from under 0.5 grams to slightly less than 1.0 grams (less than 15% by\nweight). Of note, all constituents of ultracapacitors are sealed completely within a highly durable welded\nsteel shell. See Product Diagrams, Exhibit \"B\".\nStructurally, Maxwell's ultracapacitors (double-layered capacitors) are comprised of non-reactive\nporous plates suspended within an electrolyte with a voltage applied across the plates, in a system in\nwhich no chemical reactions occur. See Exhibit \"B\" (diagrams), Exhibit \"C\" (specifications). The\nproduct is an important component in energy-efficient electronic devices and numerous other energy\nstorage applications.\nUltracapacitors are discharged after manufacturing tests and are transported without an electric\ncharge to U.S. and international customers.\nMaxwell has reviewed the hazardous materials laws and regulations to determine the appropriate\nshipping requirements for ultracapacitor models PCS and PCIO. Ultracapacitors (and capacitors\ngenerally) are not listed in the hazardous materials table at 49 CFR Section 172.101. The ultracapacitors\nat issue in this request will contain 0.5-1.5 grams of a hazardous substance: acetonitrile. The products do\nnot exhibit any of the characteristics of a hazardous material under 49 CFR. Section 173.115, et seg.\nbecause of (i) the extremely small physical dimensions (less than 10 grams); (i) the durable structural\ndesign of ultracapacitors (metal containers), and (iii) the small amount of acetonitrile contained therein\n(0.5-1.5 grams). Hence, the hazardous materials regulations do not provide clear guidance concerning\nappropriate shipping requirements for ultracapacitors.\nIn light of this novel product, Maxwell representatives have had informal discussions with DOT\nstaff on several occasions. Staff shared Maxwell's view that ultracapacitors are factually unique and\nwarrant further DOT evaluation. In this letter, Maxwell sets forth the facts and characteristics of\nultracapacitors to allow DOT to evaluate the appropriate shipping requirements. For the reasons set forth\nbelow, Maxwell requests that DOT issue a written determination that ultracapacitor models PCS and\nPC10, in particular, and all ultracapacitors less than 10 grams in weight and containing 1.5 gram or less of\nacetonitrile pose no material risk to health, safety or property during transport and are therefore not\nsubject to DOT's regulations governing the transport of hazardous materials.\nSD1365915.8\n\n<<<PAGE 4>>>\n\nJanuary 29, 2003\nRSPA Office of Hazardous Materials Standards\nPago 3\n•LATHAM WATKINS.\nB.\nAnalysis\nUltracapacitor Design\nUltracapacitors are manufactured electronic products that are approximately the size of a quarter,\nand primarily contain non-hazardous substances, such as metal and plastic. The devices are comprised of\nsealed steel containers that enclose layers of activated carbon, metal and plastic. The activated carbon is\nsaturated with an electrolyte solution. The electrolyte contains a quaternary salt and a small amount (less\nthan 1.5 grams) of acetonitrile. Acetonitrile is a flammable liquid in pure form. However, the acetonitrile\nin ultracapacitors contains a salt and is absorbed into activated carbon. Ultracapacitors are manufactured\nby welding and sealing the steel container, ensuring that the 0.5-1.5 grams of absorbed acetonitrile is\ncompletely encapsulated and cannot escape during normal conditions of transportation and use.\nMoreover, when ultracapacitors of less than 10 grams are shipped, the hazardous material is\nessentially contained within four layers of containment. The first layer is the welded outer steel casing,\nwhich cannot be breached under normal conditions of transportation. Ultracapacitors are then wrapped\nwith plastic sheeting, placed into plastic trays or tubes, and placed in fiberboard boxes for shipment.\nIn light of the design of ultracapacitors and Maxwell's packaging protocol, the risk of an\nacetonitrile release during transport, absent a catastrophic event completely unrelated to the\nultracapacitors, is highly remote. The limited quantity of hazardous material at issue would not be\nseparated from the activated carbon or breach the multiple layers of packaging.\n2.\nIndependent Testing Confirms That Ultracapacitors Do Not Present Risks During\nTransport.\nMaxwell contracted with Underwriters Laboratory Inc. (\"UL\"), an internationally recognized\nindependent testing organization, to conduct various standardized tests on ultracapacitor Models PC-5 and\nPC-10, including heating, shock, vibration, overcharging, and crush tests. The UL test results demonstrate\nthat under conditions associated with typical transport or handling accidents (and even more severe\nconditions), the small amount of carbon-absorbed acetonitrile is not expected to be released. See Exhibit\n\"D'\" (Underwriters Laboratory Report). Ultracapacitors passed all of the UL tests and are now UL-rated.\nThese UL data reaffirm that ultracapacitors do not pose a material risk during transport.\nAnalogous Products Have Been Deemed Non-Hazardous by DOT.\nDOT has recently issued written interpretations concluding that products analogous to\nultracapacitors in size and hazardous material content are not hazardous for purposes of transportation.?\nSD1365915.8\n\n<<<PAGE 5>>>\n\nRSPA Office of Hazardous Materlals Standards\nJaguary 29, 2003\n•• LATHAM&WATKINSUP\nSee Exhibits \"E\" (valves containing Class 4 materials, August 2002); \"F\" (pellets containing Class 4\nmaterials, August 2002); \"G\"(sodium-vapor lamps, January 2002); \"H\" (vials containing small amount of\nClass 3 liquid, September 2001); \"'\" (dental amalgam, September 2001); \"J\" (pods containing Class 8\nmaterial, April 2001); \"K\" (tubes containing Class 2.3 material, November 2000); \"L\" (solution\ncontaining Class 8 material, June 2000); \"M\" (material containing Class 3 or Class 8 liquid, April 2000).\nIn those cases, DOT found that, both in the quantity and form described, the articles do not pose a hazard\nin transportation and are therefore not subject to the hazardous materials regulations.\nOne of these products -- certain engine valves -- is highly analogous to ultracapacitors. See\nExhibit \"E.\" The valves contain 1.6 grams of a hazardous substance encapsulated within a welded outer\nsteel shell. Similarly, ultracapacitors contain 0.5 to 1.5 grams of a hazardous substance contained within a\nwelded outer steel shell. The valves were subjected to non-destructive testing, including shock, crushing\nand thermal exposure tests. Ultracapacitors were subjected to similar tests. Test results for the valves and\nultracapacitors demonstrate that under normal (and even extreme) transportation conditions, the hazardous\ncontents are not released.\nIn another case, DOT found that pellets containing less than 1.0 gram of a Class 4.3 hazardous\nmaterial do not pose a risk during transport due to the limited quantity of hazardous material, which is\nhermetically sealed inside re-sealable polyethylene bags and further packed in outer fiberboard boxes.\nSee Exhibit \"F\" In the case of ultracapacitors, the welded steel casing, packing tubes or trays, and\nfiberboard box provide even greater protection than that associated with the pellets.\nDOT also found that each of the following devices contains materials in a quantity and form that\nare not subject to the hazardous materials regulations: uncrushed sodium vapor lamps containing Class 4\nmaterials (Exhibit \"G\"); screw-top plastic vials containing small amounts of a Class 3 material (Exhibit\n\"H\"); dental amalgam containing small amounts of metals transported in watertight containers, and further\ncontained in a sealable bag and cardboard box (Exhibit \"\"); pods containing approximately one gram of\nhazardous liquid sandwiched between two plastic sheets coated with an absorbent material, and further\npackaged in a plastic cartridge and hermetically sealed foil envelope (Exhibit \"J\"); one-inch long glass\ntubes containing small amounts of Class 2.3 toxic gas packed in bubble wrap, a metal container and\ncardboard box (Exhibit \"K\"); solution containing a small amount of Class 8 liquid (Exhibit \"L\"); material\ncontaining small amounts of Class 3 and Class & liquid (Exhibit \"M\"). The design and packaging method\nfor ultracapacitors provides protection during transport equivalent to, or greater than, that of all of the\naforementioned products.\nHence, consistent with well-settled DOT precedent, ultracapacitors with an individual weight of\n10 grams or less and containing 1.5 grams or less of carbon-absorbed acetonitrile in a sealed outer metal\nunreasonable risk during transport and are therefore exempt from hazardous materials regulations\nset forth at 49 CFR Sections 171-180.\nSDI365915.8\n\n<<<PAGE 6>>>\n\nJanuary 29, 2003\nRSPA Office of Hazardous Materials Standards\nPage 5\n• LATHAM&WATKINS«P\nshell, do not pose a hazard for purposes of transportation and should therefore be excluded from the DOT\nhazardous materials transportation regulations.\nC.\nConclusion\nThe combination of a strong structural welded steel casing, small product size, absence of internal\nchemical reaction, protective shipment packaging, and limited (and absorbed) acetonitrile content\nsupports Maxwell's conclusion that certain ultracapacitors present no material risk to health, safety or\nproperty in transportation. See 49 U.S.C. § 5103(a). This request pertains to ultracapacitors no greater\nthan 10 grams in weight and containing 1.5 grams or less of acetonitrile. Maxwell respectfully requests\nDOT's concurrence that the ultracapacitors described herein shall not be subject to hazardous materials\ntransportation regulations.\nPlease do not hesitate to contact me if you have any questions concerning this request, or if you\n:\nrequire any additional information.\nVery truly yours,\nKelly E. Richardson\nOf LATHAM & WATKINS LLP\ncc:\nMark S. Cohen\nSDI365915.8","truncated":false,"body_characters":14508}