Air Products and Chemicals, Inc. — Hazardous Materials Safety Interpretation

Page 1of Transportation J.S. Department 400 Seventh St., S.W. Research and Washington, D.C. 20590 Special Programs Administratior MAY 18 2004 Mr. Richard J. Lloyd Air Products and Chemicals, Inc. Manager Regulatory Compliance Ref. No. 04-0090 7201 Hamilton Boulevard Allentown, PA 18195-1501 Dear Mr. Lloyd: This is in response to your April 5, 2004 letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to incident reporting. You "Revisions to Incident Reporting Requirements and the Hazardous Materials Incident Report request clarification of the incident reporting requirements in the December 3, 2003 Final Rule, Form," under Docket HM-229 in regard to the application of pre-transportation loading functions performed by shippers as found in the October 30, 2003 Final Rule, "Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage," under Docket HM-223. Specifically, you ask whether hazardous materials incidents that occur during loading operations conducted by a shipper prior to a carrier's arrival at its facility to pick up the shipment, or during unloading operations conducted by consignee personnel after the hazardous material has been delivered, are required to be reported under §§ 171.15 and 171.16 of the HMR. The answer is no. The hazardous materials incident reporting requirements apply to hazardous materials incidents that occur during transportation in commerce. As defined in Docket HM- 223, transportation functions, such as shipper loading operations, are regulated under the HMR. However, an incident that occurs during operations by a shipper prior to a carrier's arrival are not subject to the incident reporting requirements because the incident does not occur during transportation. I hope this information is helpful. Sincerely, Chief, Standards Development Office of Hazardous Materials Standards 040090 171.16#

Page 27201 Hamilton Boulevard Air Products and Chemicals, Inc. 1 610 481-491 lentown, PA 18195-150 Foster § 171:16 5 April 2004 Incident Reports 04-0090 Mr. T. Glenn Foster U. S. Department of Transportation Office of Hazardous Materials Standards DHM-10 Research and Special Programs Administration 400 Seventh Street, S. W. Washington, D. C. 20590 Dear Mr. Foster: Re: Docket No. RSPA-99-5013 (HM-229) Please refer to our conversation on 3 March 2004 regarding my letters of 6 January and 17 February 2004 requesting clarification of the HM-229 reporting requirements for hazardous materials incidents that occur during loading operations conducted by a shipper prior to a carrier's arrival at its facility to pick up a shipment. We will appreciate your response as soon as possible. Thank you. Sincerely, R.8. Claph Richard J. Lloyd Manager Regulatory Compliance Enclosure M:Lloyd/Dockets/HM229#

Page 3PRODUCTS L 7201 Hamilton Boulevard Air Products and Chemicals, Inc. lentown, PA 18195-150 el 610 481-4911 17 February 2004 Mr. T. Glenn Foster U.S. Department of Transportation Office of Hazardous Materials Standards DHM-10 400 Seventh Street, S. W. Research and Special Programs Administration Washington, D. C. 20590 Dear Mr. Foster: Re: Docket No. RSPA-99-5013 (HM-229) Attached is a copy of our 6 January 2004 letter requesting clarification of the HM-229 reporting requirements for hazardous materials incidents that occur during loading operations conducted by a shipper prior to a carrier's arrival at its facility to pick up a shipment. We will appreciate your response as soon as possible. Thank you. Sincerely, Rioner 3, Raye Manager Regulatory Compliance Enclosure M:Lloyd/Dockets/HM229#

Page 4BRODE 7201 Hamilton Boulevard Air Products and Chemicals, Inc. Tel 610 481-4911 Allentown, PA 18195-1501 6 January 2004 Mr. T. Glenn Foster U.S. Department of Transportation Office of Hazardous Materials Standards DHM-10 Research and Special Programs Administration 400 Seventh Street, S. W. Washington, D. C. 20590 Dear Mr. Foster: Re: Docket No. RSPA-99-5013 (HM-229) Please clarify whether the loading of packaged hazardous materials and bulk hazardous materials is a pre-transportation function when completed by the shipper prior to a carrier's arrival at a HM-223, and its application to pre-transportation loading functions performed by shippers. loading facility. We find the DOT's final rule, HM-229, confusing due to the recent final rule, On pages 67750 and 67751 in the 3 December Federal Register for HM-229, the following is shown (underline added by writer): This final rule requires reporting of incidents under Sec. Sec. 171.15 of 171.16 that occur adopted in HM-223, incidents that occur during loading operations conducted by carrier during the time that the material is in transportation. Consistent with the definitions occur during unloading operations conducted prior to a carrier's departure from the personnel or in the presence of carrier personnel must be reported, as must incidents that consignee's premises. Hazardous materials incidents that occur during loading operations conducted by a shipper prior to a carrier's arrival at its facility to pick up the hazardous material or during unloading operations conducted by consignee personnel after the required to be reported under Sec. Sec. 171.15 and 171.16. hazardous material has been delivered and the carrier has departed the premises are not The final rule, HM-229 (above), indicates that incidents occurring during a shipper's loading operations and prior to a carrier's arrival are not part of the functions subject to the Hazardous Materials Regulations (HMR). However, HM-223 addresses the application of the HMR to the loading function in the revised 49 CFR section 171.1, Applicability of Hazardous Materials Regulations to persons and functions (Federal Register page 61937 and 61938), by including the following in the list of Pre-transportation functions in paragraph (b) (3) and (b) (13): M:Lloyd/Dockets/HM229#

Page 5(3) Filling a hazardous materials packaging, including a bulk packaging. (13) Loading, blocking, and bracing a hazardous materials package in a freight container or transport vehicle. Therefore, the HM-223 revisions apply the HMR to all pre-transportation functions performed in advance of the actual transportation to prepare a shipment of hazardous materials for transportation. According to paragraph 171.1 (b) (3) and (13), this includes the loading of packaged or filling (loading) bulk hazardous materials. As you can see from these final rules, it is unclear how to apply the Hazardous Materials loading facility. Air Products will appreciate your help in clarifying the regulations so that out Regulations to the loading function performed by the shipper prior to a carrier's arrival at a company will be in compliance with the intended purpose of the recent regulatory revisions. Sincerely, 12. 9. Llogd Richard J. Lloyd Manager Regulatory Compliance M:L.loyd/Dockets/HM229#