Keller and Heckman LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Special Programs Research and Washington, D.C. 20590 400 Seventh St., S.W. Administration FEB 13 2004 Mr. Michael F. Morrone Keller and Heckman LLP Ref. No. 04-0013 Washington, D.C. 1001 G St., N.W., Suite 500 West 20001 Dear Mr. Morone: clarification regarding the applicability of the materials of This is in response to your January 13, 2004 letter requesting 49 CFR Parts 171-180). Specifically, you ask us to confirm your trade exceptions under the Hazardous Materials Regulations (HMR; understanding that your client's (Selective Micro Technologies) for transportation and transported under the materials of trade cleaning products, as described in your letter, may be. offered requirements in § 173.6 are met. Your requested confidential You state that all applicable granted. treatment for certain information contained in your letter is exceptions and Your understanding of the requirements for the materials of trade the provisions Based on the information you submitted, we agree that addressing forbidden materials is your client's cleaning products may be offered for transportation 173.6. To identify the material as being less hazardous than in and transported under the materials of trade exceptions in 49 CFR a more concentrated form, you may want to consider including the proper shipping name. Your unabridged letter and drawings are enclosed. questions, please do not hesitate I hope this information is helpful. to contact this office. If you have additional Sincerely, Hothe Z. Mithell Regulatory Review and Reinvention Hattie I. Mitchell, Chief Office of Hazardous Materials Standards Enclosures 1310 040013#

Page 2KELLER AND HECKMAN ILP January 13, 2004 Michael F. Morrone (202) 434-4124 Research and Special Programs Administration morrone@khlaw.con Office of Hazardous Materials Standards (DHM-10) U.S. Department of Transportation 400 Seventh Street, S.W. Washington, D.C. 20590-0001 Re: Selective Micro Technologies - Request for Clarification of Applicability of 0199 Issued November 14, 2003 Materials of Trade Exception; Follow up to Letter of Interpretation Ref. No. 03- Dear Sir or Madam: several Our client, Selective Micro Technologies LLC (SELECTIVE MICRO), manufactures equest for clarification, the Office of Hazardous Materials Standards, U.S. Department o1 cleaning products. In response to our August 5, 2003, written ransportation (DOT) recently issued a letter confirming that these products may be shippe under the DOT's small quantity exception.' We now request further guidance regarding the applicability of the DOT's materials of trade exception, 49 C.F.R. § 173.6, to certain of these confirmation that SELECTIVE MICRO's. products to hat SELECTing Professioner similar prolat, were best sported under the materials of trade exception when prepared in the manner described herein. Product Description cleaning products that As described in our August 5, 2003, letter, SELECTIVE MICRO manufactures several The DOT has confirmed that these products may 0199 (Attachment 1) and August 5, 2003, Letter from Michael F. Morrone to Research and See November 14, 2003, Letter from Hattie Mitchell to Michael Morrone, Ref. No. 03- Special Programs Administration, Office of Hazardous Materials Standards (DHM-10) Quantity Exception. Regarding Selective Micro Technologies - Request for Clarification of Applicability of Small 2#

Page 3Research and Special Programs Administration January 13, 2004 KELLER AND HECKMAN ILP Page 2 be offered for transportation and transported under the small quantity exception, 49 C.F.R. § material of trade. 173.4. This present letter concerns the transport of SELECTIVE MICRO's product, as a SELECTIVE MICRO's! _product contains a proprietary device within a two-liter BOPP) and linear low-density polyethylene (LLDPE). The pouch is 8 mils thick. ouch constructed of metalized bi-axially oriented polypropylene with a foil layer attache The envelope is heat-sealed and then secured within the BOPP/LLDPE pouch. The pouch, which is constructed with a polypropylene spout, tamper-evident seal and screw-on cap, is heat- sealed. To use the product, the tamper-evident seal is removed; the pouch is then filled with approximately two liters of water and the cap screwed closed. To address these and other site-specific cleaning needs, SELECTIVE MICRO 3 4 See Figures 1 and 2 in Attachment 2.#

Page 4Research and Special Programs Administration KELLER AND HECKMAN LIP Sage ry 13, 2004 The HDPE container then will be sealed with a child-resistant, tamper-evident sealing mechanism comprised of a leak-tight screw cover and locking latch. The gross weight of the entire assembly will be no more than 25 pounds. Prior to departing on service calls, the service technician(s) will place the HDPE container will be secured in the vehicle using shock cords or a comparable method to prevent any products in their motor vehicle (e.g., service van). The HDPE movement during transport. During transport, thei to arrive at a customer's facility with the cleaning solution ready to use so that the dirty The goal is for the service technician equipment/instruments/etc. can be cleaned and disinfected without delay. seal any pouches with unused cleaning solution and return these pouches to the HDPE container After finishing cleaning operations at a customer's facility, the service technician will re- in the transport vehicle. Depending on a particular day's schedule, the service technician may pouches will be removed from the transport vehicle and disposed of or stored in accordance with travel to additional customer sites and perform similar operations. At the end of the day, all product label instructions. Classification of Filled Pouches We understand, though, that 49 C.F.R. § 172.101(d)(1) provides that the prohibition against shipping a forbidden Massed decod apply if the mazaid itali ded, tabs in 9C... Part 1 3. As viscused is below, we believe that the small quantity of will be sufficiently dilute to render the forbidden status inapplicable.#

Page 5Research and Special Programs Administration January 13, 2004 KELLER AND HECKMAN LIP Page 4 trictly limits the amount of The small quantity present in each pouch By design, Material of Trade Exception DOT's definition of a material of trade encompasses hazmats that are carried on a motor vehicle by a private motor carrier in direct support of a principal business that is other than SELECTIVE MICRO's transportation by motor vehicle. 49 C.F.R. § 171.8. We believe that the transport of definition of a material of trade in that the transport is by private motor carriage product by protessional service technicians fits within the in support of a business that is other than transportation of hazmats. We are requesting confirmation that parties who transport SELECTIVE MICRO's | product in the manner described herein will be entitled to relief under the materials of trade are being met: exception. In support of this request, we note that all of the criteria listed in 49 C.F.R. § 173.6 • Per § 173.6(a)(1), the material fits within the listed hazard classes/divisions and is less than the corresponding quantity limits. More specifically, the material fits within contain Furthermore, because each pouch will which is well below the regulatory limit of 30 liters.#

Page 6Research and Special Programs Administration Page 5 January 13, 2004 KELLER AND HECKMAN ILP • Per § 173.6(b), the are leak-tight and packaged in a sealed, insulated HDPE container that is stowed securely in the transport vehicle to provide added protection against damage. • Per § 173.6(c)(1), the HDPE container will be marked with the common name of the material as follows: • Per § 173.6(c)(4), the service technicians who operate the motor vehicles used to transport the products will be informed they are transporting a hazmat and of the requirements of 49 C.F.R. § 173.6. • Per § 173.6(d), the aggregate gross weight of all materials of trade present in the service technician's vehicle will not exceed 440 pounds. The maximum gross weight of the roducts when packaged in the manner described herein will be more than an order o nagnitude less than the specified limit. Please advise whether you agree that SELECTIVE MICRO's transported as described herein, qualifies for the materials of trade exception. Should you have product, when any questions or require further information, please do not hesitate to contact us. We look forward to receiving your response as soon as possible so that SELECTIVE MICRO's customers may transport the product accordingly. Sincerely, Milault. Mono Michael F. Morrone Attachments: 1. November 14, 2003, Letter of Interpretation, Ref. No. 03-0199 2. 5#