McCarthy, Sweeney & Harkaway, P.C. — Hazardous Materials Safety Interpretation

Page 1S. Departmel f Transportatio 400 Seventh St., S.W. Research and Washington, D.C. 20590 Administration Special Programs MAY 2 1 2003 Mr. Lawrence W. Bierlein, Esq. McCarthy, Sweeney & Harkaway, P.C. Ref. No.: 03-0115 Suite 600 Washington, D.C. 20037 2175 K Street, N. W. Dear Mr. Bierlein: This responds to your letter dated May 2, 2003, a clarification of the requirements in § 177.848(e) of the Hazardous Materials Regulations (49 CFR parts 171-180) as they apply to separation of non-compatible materials. Your specific scenario involves the separation of properly packaged and prepared hazardous materials in a refrigerated trailer that has floor ribs running from front to back of the trailer. The scenario is as follows: Packages containing hazardous materials bearing an OXIDIZER label are loaded on a pallet in the front of the trailer, liquid hazardous materials bearing a CORROSIVE label are loaded on a pallet and placed near the midline of the trailer, and hazardous materials bearing a FLAMMABLE LIQUID label are loaded on a pallet and loaded near the rear of the trailer. The intervening spaces contain pallets loaded with compatible hazardous materials or non-regulated materials. Segregation is achieved by the placement of the hazardous materials in specific locations on the trailer and using other compatible freight to provide separation. However, at issue is whether the ribbed flooring of the trailer prevents these materials from being loaded on the same vehicle, even though otherwise separated. It is the opinion of this Office that the method of separation described in the above scenario meets the requirements specified in § 177.848(e). The fact that the floor of the trailer is ribbed has no bearing on this requirement. I hope this information satisfies your inquiry. Please contact us if you require additional assistance. Sincerely, mon tills Delmer F. Billings Chief, Standards Development Office of Hazardous Materials Standards 177.848 030115#

Page 2May-02-03 15:11 FroM-HCARTHY SWEENEY & HARKARAY, P.C. +202 775 5574 T-D76 P.002/008 F-814 LAW OFFICES DOUGLAS M. CANTER LAWRENCE W. BIERLEIN MCCARTHY, SWEENEY & HARKAWAY, P.C. ANDREW P. GOLDSTEIN JOHN M. CUTLER, Jr. SUITE 600 (202) 775-5574 FACSIMILE STEVEN J. KALISH 2175 K STREET, N.W. RICHARD D. LIEBERMAN WASHINGTON, D.C. 20037 E-MAIL HANNING D. STROTHER, Jr (202) 775-5560 MISH@MSHPC.COM WEBSITE KAREN R. O'BRIEN OF COUNSEL HTTP://ww.MSHPC.COM Billings May 2, 2003 $177.848 Segregation Mr. Delmer Billings 03 - 0115 Standards Development Office of Hazardous Materials Standards Research & Special Programs Administration 400 Seventh Street, SW Department of Transportation Washington, DC 20590 Re: Request for interpretation; 49 CFR 177.848(e) Dear Mr. Billings: On behalf of Fisher Scientific Company, I request your concurrence in my intorpretation ertains to application of the entry "O" as it appears in the Sec. 177.848 segregation char f Section 177.848(e) of the hazardous materials regulations. Specifically, this request and as it is defined in subparagraph (e)(3) of that section. This request is prompted by a disagreement with California authorities, who are pursuing an enforcement action based Fisher Scientific is a supplier of packaged chemicals to laboratories. The company ships regulated hazardous materials and, when bearing labels in accordance with the and loads motor vehicles with a wide variety of chemical products. Often these are DÖT- regulations, may be covered by loading restrictions in Part 177. Those are all non-bulk packages, marked and tested in accordance with the UN with inner receptacles. Scveral packages of compatible materials are loaded on a pallet, performance standards. Most are combination packages, i.e., UN 4G fiberboard boxes and are stretch-wrapped to stabilize them on the pallet. All packages in the load are palletized in this manner. understand to be past interpretations of these regulations. Labeled articles of compatible Fisher Scientific has followed a vehicle loading pattorn consistent with what we matctials on pallets are loaded in the first row across the nose of the trailc. Next, the 1#

Page 3May-02-03 15:11 From-CARTHY SWEENEY & HARKAWAY. P.C. +202 775 5574 T-076 P.003/008 F-814 not capable of reacting dangerously with the hazardous materials. company loads one or more rows of pallets of materials not subject to Part 177, that are In the approximate center of the trailer, another row of labeled articles on pallets is loaded, scparated fiom the front row by the intervening pallets of other freight. This labeled articles in the first row. The middle row is followed by one or more rows of niddle row of compatible materials may contain articles requiring separation from the pallets of materials not subject to Part 177 and, at the door of the trailor, a row of one or more pallets of additional labeled articles are placed. In accordance with the regulations, the packages in this last row may need to be separated palletized labeled materials are separated from one another by at least one pallet-width of from those in the middle or the first rows. In short, the first, middle, and last rows of intervening freight not subject to Part 177. The entire load is secured as required. The quality and purity of these laboratory chemicals are essential to the technical customers for such products. Over many years, the company has determined that temperature controls, minimizing extremes of ambient heat or cold, are often the most Hence, these shipments frequently are made in refrigerated trailers. I understand this to appropriate and effective method of assuring quality and safety in the use of the products. be the common practice in the industry for distribution of chemical reagents. The floor of a refrigerated trailer has ribs running from the front to the back of the vehicle. The State of California has taken the position that a material that might leak from a box on the front row of pallets conceivably could move across this floor to the middle row of pallets, or to the last row of pallets, thereby allowing commingling of incompatible hazardous materials. Their contention is that the common floor of a refrigerated trailer precludes every product on the truck from being segregated from vehicle to separate each material subject to the "O" entry in Section 177.848. every other product on the truck. Their view would compel use of a different refrigerated I have reviewed the history of the segregation chart, particularly the most recent rulemaking in Docket No. HIM-181B. As you know, DOT proposed requiring a lateral scgregate materials subject to the "O" entry in the char. Following substantial public separation of approximately 1.2 meters (4 feet) and 10.6 cm (4 inches) off the floor io comment, much of which pointed our that sparation distances could be less without more generic standard now appearing in the definition of "O" was adopted, allowing reducing transportation safety, these specific measures were not adopted. Instead, the separation distances of less than 4 fect. indicate, that for refrigerated irailers the definition of "O" would have the same At no time did the agency propose or state, nor did any of the comments I reviewed opcrational effect as "X", meaning that materials requiring separation could not be shipped aboard the same vehicle. Numerous interpretations over the years have confirmed and made clear that intervening requiring "O" segregation. An early interpretation, for example, said that labeled freight may be used as an adequare means of segregation of materials bearing labels corrosive materials could be loaded with oxidizers if the products were separated by 2#

Page 4May-02-03 15:11 From-MCARTHY SWEENEY & HARKAWAY, P.C. +202 775 5574 T-07G P.004/008 F-814 flammable liquids or non-hazardous products. That interpretation (Feb. 8, 1984; attached) also noted, "In most instances, an intervening space of at least one foor is considered adequate." pallet-width from any other labeled article requiring separation, complies with the We believe that palletized non-bulk UN packages of materials, separated by at least one requirements of 49 CFR 177.848(c), whether these pallets are on a ribbed floor or not on that different materials having an "O" entry in the table, when shipped on refrigerated a ribbed floor. Nothing in the rulemaking history of this section supports the conclusion equipment, must be carried on a separate vehicle. Your concurrence in our understanding of this regulation would be very much appreciated. Please contact me if you have any questions on this request. Thank you. Lawrence W. Bierlein For Fisher Scientific Company#

Page 5Ma/-02-03 15:12 From-MCARTHY SWEENEY & HARKANAY, P.C +202 775 5574 T-076 P. 007/008 F-814 STATE OF CALIFORHIA SAFETYNET DRIVER/VEHICLE INSPECTION REPORT DEPARTMENT OF CALIFORNIA HIGHWAY PATROL CHP 407F (Rav 9-95) OP1062 3896411 SPEC. 5 6-4-02 IST, ZO3 CODE 222 1859 INSPECT COE 4/12 PROJ. NAMI LAST DRIVER INFORMATION 5. 106655535 TWE CARNERINFORMATION 10. 414864409 TEA CH. CA. 8333 TPuc MARES KLLM INC NO. STREET NAME NO. NO. US DOT. ADDRESS FO BOK 135 RIVERVIEW VEH/ YEAR VEHICLE INFORMATION DR TRICHLAND SDUE MS 1006 39218 199 ERYT MAKE TYPE ARLES LIC NO. RIREI4 , STATE EQPMT.NO. COMPLIANCE DRIVER QUALIFIGATIONS Drivar'o Licenso NO Ors DIs 298 WANG 64R252 7 Mocical Cort Drivor's Log Driver's Hours VEHICLE INSPECTION COMPUANCE NO VEHICLE 1 • DISPOSITION CODES BRAKE ADJUST. HAZARDOUS MATERIALS INSPECTION Steering Componenta I ors • DIS Towed Escorted Front Ship Papor/Manifest COMPLINCE NO O/S IDIS HM Liconse Extust Lef Right VEHICLE 2 NO VEHICLE 3 OrS i DIS NO I O/S VEHICLE 4 AS/O T Placartio Lom Air Warnino Dovion Peckaging Ar Loar, Unappied Ave 2 Brake Drums/Shoes Brake Adjuroner Loading/Securemans Labale CHA поз Баха Pant 24.663 1 Syalam Ax/a 4 Safoly Equipmont CODES Lgras: Slop/Tum N • Yes F •Yes 00 но • NO • Yas HWT • Yes • No • NO Tras Wheels Axia 6 Placandy Rodon • Yes • No Susponsor 140 B- 12 (Emisciver) A- f.I (Explosives) 1-23 (Polson Gas) HM CODES 1- 3 (Flam qui R- 52 (ood. Sub.) 0 - 8,1 (Pai PG E) Maidenancerother Reginarion Axio 8 C. l.9 D. 1.4 (Explories) (Explaines) X-4.1 (Flam. Solin) L- 42 (Spon Carso.) 5-7 т. в (Rudoxtre) E • 1,5 (Exalosives) M1-4.3 (Dang, "Wet) U -8 (CoTaGina) ISSUED CUSA STICKERS iv-r V-2 F=1.6 Explosives) N-5.1 (Odditer) V (Cemberfile Liquia) (Misc) H-22 (Hantar. G34) G- 21 (Flam Gas) P-6.1 (Poi. PG & I) 0-5.2 (Ory. Pertz) X ¡Onary * [ORM-D) / REVIEWED BY I.D. NO. COMMENTS RESPON IMPROPER SHIPPNE NAME, BA* 06000038808, 1, 2-DI DIMETHYLAMIND ETHNE SHIPPING PAPERS NOT IN PROPER SI Cass 8 liquds loaded weth class 8 cLass 5.L Class louds landed wIth paded WiTh @lass 4:3 @tass 43 toaded 5. 1 wint l0 sea IT LEASE READ THE INSTRUCTIONS ON NDC 1454 THE REVERSE SIDE OF THIS FORM. lacknowiedge that have ruviowedand DRIVER received a copy of this roport SIGNATI -Destroy Provous E#