Hogan & Hartson L.L.P. — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Administration Hazardous Materials Safety MAY 4 2005 Ms. Christine Arcari Ref. No. 04-0166 Environnental Specialist 555 13th Street, NW Hogan & Hartson L.L.P. Washington, DC 20004 Dear Ms. Arcari: This responds to your e-mail requesting clarification of the packaging requirements for insoluble solids packaged in liquids under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask whether an insoluble solid such as Phosphorus, white or yellow (UN1381) must be placed in a specification packaging (1A2, removable head steel drum) rated for both solids and liquids when packaged under water as prescribed in $ 173.188. I apologize for the delay in responding and any inconvenience it may have caused. The answer is no. As prescribed in § 173.188 (a) (2), white or yellow phosphorus may be placed in water in a removable head steel drum (1A2) with a capacity not over 115 L (30 gallons). As specified in the S 173.188 introductory text, the drum must be rated at the Packing Group I performance level and, because the drum contains a material that remains in a liquid phase when transported, the drum need only be tested for liquids. A drum containing a pyrophoric material such as white or yellow phosphorus must contain sufficient water so that the material remains covered in transportation regardless of orientation. I trust this satisfies your inquiry. Please contact us if we can be of further assistance. Sincerely, Hotte z. Mtshell Hattie L. Mitchell Office of Hazardous Materials Standards Chief, Regulatory Review and Reinvention 173.188 040166#

Page 2Regulatory interpretations regarding solids under water Page 1 of 2 Stevens, Michael From: Mazzullo, Ed Sent: Thursday, May 06, 20048:27 AM Stevens To: Stevens, Michael Cc: Mitchell, Hattie §173.188 Subject: FW: Regulatory interpretations regarding solids under water Follow Up Flag: Follow up Phosphorus Flag Status: Flagged 04-0166 Please handle this. Ed ----Original Message-- Sent: Wednesday, May 05, 2004 4:03 PM From: Arcari, Christine J. [mailto: CJArcari@HHLAW.com] To: Mazzullo, Ed Subject: Regulatory interpretations regarding solids under water Cc: Kastner, Kenneth M. Dear Edward Mazzullo, Ken Kastner and I recently spoke with Del Billings and he suggested we contact you solids placed in water. in order to locate existing regulatory interpretations regarding shipments of phosphorus, white or yellow, under water (UN1381) packaged in steel drums (1A2) . Specifically the material being shipped would be Mr. Billings said that he recalls some interpretation letters stating that if a a packaging raied for both solids and liquids. Attached is one pertinent solid hazardous material is shipped with a liquid component it must be packaged in can provide us"? interpretation letter that we located on your web site. Are there any others you greatly appreciated. Sincerely, Christine Arcari Environmental Specialist Hogan & Hartson b.L.P 555 13th Street, NW Washington, DC 20004 Tel: (202) 637-5872 Fax: (202) 637-5910 cjarcari@hhlaw.com <4_29_03DOTinterp.pdf>> This electronic message transmission contains information from the 07/19/2004#

Page 3Regulatory interpretations regarding solids under water Page 2 of 2 law firm of Hogan & Hartson L.L.P. which may be confidential or individual or entity named above. If you are not the intended privileged. The information is intended to be for the use of the recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this electronic transmission in error, electronic mail (PostMaster@HHLAW.COM) immediately. please notify us by telephone (202-637-5600) or by 07/19/2004#

Page 4S. Departmel Transportatic Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Administration Hazardous Materials Safety MAY 16 2005 Major Mark P. Wyrosdick Ref. No. 04-0247 Military Surface Deployment and Distribution Commanc Department of the Army 661 Sheppard Place Operations Center Fort Eustis, VA 23604-1644 Dear Major Wyrosdick: This responds to your October 15, 2004 letter requesting clarification of requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) concerning the transportation of explosives by rail. Specifically, you ask whether flat cars designated "F" and "FCA" in the Official Railway Equipment Register (Register) may be used to transport Class 1 materials. Please accept my apology for the delay in responding and any inconvenience this may have caused. Section 174.104 of the HMR generally requires Division 1.1 or 1.2 materials to be transported in closed cars meeting specific regulatory requirements. However, the HMR include exceptions that allow for the transportation of Class 1 materials on flatcars, including those designated FC and FCA in the Register. For example, § 174.101(b) provides that "[b]oxed bombs, rocket ammunition and rocket motors, Division 1.1, 1.2, or 1.3 (explosive) materials, which due to their size cannot be loaded in closed cars, may be loaded in open-top cars or on flatcars, provided they are protected from the weather and accidental ignition." Further, § 174.101(n1) provides that Division 1.1 or 1.2 explosive material (except black powder packed in metal containers) may be transported in a freight container on a flatcar, provided certain conditions are met (e.g., the freight conta ner is "designed, constructed, and maintained so as to be weather tight and capable of preventing; the entrance of sparks," the freight container meets certain impact resistance tests, is properly placarded and has a properly executed car certificate, and provided the freight container and the lading inside the container is properly blocked and braced). Finally, § 174.101(o) provides that Division 1.1, 1.2, or 1.3 explosive material may be transported in a "tight closed" trailer on a flatcar, provided certain conditions are met. Section 174.101(o) also provides that, in certain instances, when Division 1.1, 1.2, or 1.3 materials cannot be loaded into closed trailers because of their size, the materials may be transported on open-top trailers, so long as the materials are protected against accidental ignition and certain other conditions are met. You also ask whether the Federal Railroad Administration (FRA) has delegated authority to represent the Pipeline and Hazardous Materials Safety Administration (PHMSA; formerly the Research and Special Programs Administration) for interpretations of the HMR. As the agency 174.101 174.104 040247#

Page 5delegated authority to issue hazardous materials safety and security regulations, PHMSA is responsible for issuing formal legal interpretations of the HMR and the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), which are published in the Federai Register, and for providing informal interpretations (advice, guidance, and clarification) concerning the requirements of Federal hazmat law and the HMR. FRA has delegated authority over "all areas of railroad safety," including the enforcement of the hazardous materials regulations issued by PHMSA. FRA and the other DOT operating administrations are authorized io issue informal interpretations that apply to a single mode of transportation or that raise issues that have been previously addressed in letters of interpretation. In consultation with PHMSA, FRA issues such informal interpretations with respect to rail transportation of hazardous materials or well-settled interpretations, such as the two informal interpretations enclosed with your letter. If you have any further questions regarding the above interpretation, please do not hesitate to contact this office or FRA's Hazardous Materials Staff Director, Mr. William Schoonover, at (202) 493-6229. Sincerely, Susan Gorsky Acting Director Office of Hazardous Materials Standards#

Page 610/15/04 15:34 FAX 7578788887 MTMC-DC-FN @002 MILITARY SURFACE DEPLOYMENT AND DISTRIBUTION COMMAND DEPARTMENT OF THE ARMY Webb 661 SHEPPARD PLACE OPERATIONS CENTER FORT EUSTIS, VA 23604-1644 $174.101 LO STATES OF A REPLY TO ATTENTION OF Safety Divisicn October 15, 2004 §174.104 Mr. Edward T. Mazzullo Explosive Office of Hazardous Materials Standards Director, DHM-10 Research and Special Programs Administration 04-0247 400 Seventh Street, SW U.S. Department of Transportation Washington, DC 20590 Dear Sir: Department of Defense hereby requests interpretation of hazardous materials regulations as outlined below. The In accordance with the provisions of Title 49, Code of Federal Regulations (CFR), Section 105.20, the following file number has been assigned: File Number: 201-04 (1015) Proponent: Department of Defense Request Official Interpretation of standards 49 CFR 174.104 and 174.101 operations affecting the transportations of Class 1 explosive materials. We are requesting an official interpretation of the following citations and their impact upon DOD 1. 49 CFR 174.104 "Division 1.1 or 1.2 (explosive) materials; car selection, preparation, inspection, and matiation. periorld by all may be tetaported de in a certified end propriy of carded a so i.., freight container on a flatcar...". ....(2) A container car or car which is loaded with freight containers....." 2. 49 CFR 174.101 "Loading Class 1 (explosive) materials." Specifically, 174.104(n) a container car or Our question is what is the official position of the Department of Transportation (DOT) with respect to the following designations: MDC Modern Flat Car Equipment 1. FC Flat car well type. 2. FCA Flat car articulated well type. 3. FCA Flat car articulated skeltonized/spine type. is not a clearly cefined connection relating to the questions we pose regarding the more modern flat car equipment Our understanding of the above standards indicates they are intended for boxcars and container cars. There above. Further, we are in possession of interpretations (attachments 1 & 2) issued previously by the Federal Railroad Administration (FRA) providing guidance with respect to the employment of boxcars for the transportation of explosives. We have no issues with those interpretations; however, we maintain an interest in concluding is the FRA delegated authority to represent the Research and Special Programs Administration (RSPA) in matters of the scope of those standards in question? transportation of hazardous materials, and at issue is how does railroad articulated flat car equipment fall within the#

Page 710/15/04 15:34 FAX 7578788887 MTNC-DC-FN 0003 -2- available through 49 CFR Part 106 "Rulemaking Procedures" we would be available for consultation anc If our issues are a matter for change to those regulatory standards above employing the mechanism participation. This request is submitted by Mr. Joseph P. Dugan, phone (757) 878-8294, e/mail Fort Eustis, VA 23604-1644. dugani@sddc.army.mil, Safety Staff:, Military Surface Deployment and Distribution Command, 661 Sheppard Place, Sincerely, Mach Po Wyndick Mark P. Wyrosdick Major, US Air Force Encl Chief of Safety#