Eliokem, Inc. — Hazardous Materials Safety Interpretation

Page 1: U.S. Department of Transportation 400 Seventh St., S.W. Special Programs Research and Washington, D.C. 20590 JUN 23 2003 Administration Mr. Dennis McMahan Supply Chain and Logistic Manager Reference No. 03-0065 Eliokem, Inc. 1452 East Archwood, Suite 240 Akron, OH 44306 Dear Mr. McMahan: This is in response to your letter asking if a Class 9 label may remain on a package of styrenated phenol liquid when it is shipped in the United States (U.S.) or within a U.S.-designated port area provided the shipping paper does not describe the material as a hazardous material and the disclaimer "Not subject to U.S. DOT regulation" is marked on the package. You state the styrenated phenol liquid meets the criteria for the Class 9 hazard class under the European Agreements concerning the International Carriage of Dangerous Goods by Road (ADR) and Rail (RID) regulations for transportation of hazardous materials by highway or rail in Europe, but does not meet the definition of any hazard class under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), or the International Maritime Dangerous Goods Code (IMDG Code) for transportation in the U.S. The material safety data sheet you provided states the material may cause an adverse effect in an aquatic environment. The HMR do not authorize labeling in accordance with the ADR/RID regulations. Section 172.401(c) permits labeling in accordance with the IMDG Code, International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, or Canadian Transport of Dangerous Good Regulations only if a material is a hazardous material or dangerous good under any of these regulations. However, the IMDG Code does not include a prohibition consistent with § 172.401. As the IMDG Code does not specifically prohibit the use of labels authorized by ADR/RID, packages of the ADR aquatic environment material may be labeled Class 9 and are acceptable for transportation within the U.S. We recommend ADR labeled packages transported in the U.S. be limited to closed freight containers and transport vehicles to avoid potential frustration of the shipments. A statement such as "non-DOT regulated" or "not subject to U.S. DOT regulation" may appear on the product label for subsequent transportation in the U.S. Also, in a notice of proposed rulemaking published on December 3, 2002 (Docket No. RSPA-02- 13658, HM-215E), we proposed adding Special Provision 146 to § 172.102 of the HMR. This special provision will permit materials that are designated as environmentally hazardous by the Competent Authority of the country of origin, transit, or destination, but do not meet the o be described as "Environmentally hazardous substances, liquid or solid. n.o.s." The final rul lefinition of a hazardous substance or hazardous waste in § 171.8 or any other HMR hazard clas is under development. 172401 030065#

Page 2You also asked us to clarify what is meant by the phrase "final destination" when the styrenated phenol liquid is imported into the U.S. under the IMDG Code, delivered to Eliokem's distribution warehouse, and then further sold and shipped to customers. Specifically, you seek guidance for determining when a hazardous material has completed transportation and is no longer subject to the HMR. "Transportation," as defined in § 5102 of the Federal hazardous materials transportation law (49 U.S.C. 5101-5127), means the movement of property and loading, unloading, or storage incidental to the movement. A hazardous material's transportation ends once a consignee takes physical delivery of the hazardous material from the carrier. After delivery, storage of a hazardous material at a consignce's facility is not "storage incidental to the movement" within the meaning of the Federal hazardous materials transportation law; thus, the HMR do not apply to such storage. Transportation in commerce begins again when the hazardous material is re-offered and accepted for transportation for delivery to another consignee. I hope this satisfies your request. Sincerely, Hathe z rotthele Hattie L. Mitchell, Chief Regulatory Review and Reinvention Office of Hazardous Materials Standards#

Page 3INFOCNTR From: Sent: dennis_mcmahan@eliokem.com Subject: To: Infocntr, Infoentr <RSPA> Tuesday, March 04, 2003 11:00 AM Edmonson Information Center Comments/Questions 37162 176.2 Below is the result of your feedback form.. (dennis_mcmahan@eliokem.com) on Tuesday, March 4, It was submitted by 03-0065 Email: dennis_mcmahan@eliokem.com Labelina Name: Dennis McMahan 172.401 4v... . Category: 171.1 - 171.21) General Information, Regulations, and Definitions (Sections ..... Organization: Elioken Inc in ! Street: 1452 East Archwood Suite 240 City: Akron State: Ohio Zip Code: 44306 Phone: 330 734 1117 Fax: 330 734 1101 Comments: Would you please provide a written official response to the following questions. Thank you of our U.S. Company (Elioken Inc.) produces a product that is regulated I would like clarification on an issue. Eliokem SAS, a French affiliate Europe. and labeled as a Class 9 Dangerous Goods per the ADR/RID regulations in Eliokem Inc. imports this material from Inited States. In the United States, this material is not subject to the Erance for re-sale within the HMR's and is a non-regulated, non-hazardous material. The product is a styrenated phenol liquid that has a Class 9 label in Europe under the We would like clarification on the following three issues: labels to remain on Would it be permissible for the ADR/RID Class 9 Dangerous Goods U.S. DOT regulation" when shipped within the United States? We would not "Not subject to offer shipping papers with this product when shipping in the United States that would describe it as a hazardous material. (via an ocean vessel): Would it be permissible to apply a ADR/RID Class When exporting this material to France from the United States to U.S. DOT regulation" for the U.S. inland portion of the with the disclaimer "Not transport to the port, if this product is not regulated per IMDG or the#

Page 4: 3. destination" when discussing The official definition/interpretation of the term "final in accordance with the IMDG is unclear to shipment imported into the United States Material Standards response Ref. No. 989-1050 to Browning Chemical Corp. In the Office of Hazardous States in accordance with the IMDG Code under $171.12 of the HMR's may on August 10, 1998, "a shipment imported into the United be offered for transportation and transported in the United States to its final destination." warehouse in the U.S. and then | If the product is imported into Eliokem' s in the U.S., is the "final destination" the customer facility or is it sold and shipped to our customer Eliokem's distribution warehouse. each country in which we conduct business, we As we make every effort to operate within laws and regulation of and ruling regarding these questions prior to taking any action. We are await your interpretation currently removing is imported and prior to re-shipping the product in the United States. the Class 9 Dangerous Goods labels once the product Best Regards, Dennis McMahan Eliokem Inc. Supply Chain & Logistic Manager#