Mr. Richard Daley — Hazardous Materials Safety Interpretation

Page 1U.S. Department 400 Seventh Street, S.W. of Transportation Washington, D.C. 20590 Hazardous Materials Safety Pipeline and Administration MAR 18 2005 Mr. Richard Daley Ref No.: 05-0014 Logistics Operations Manager Borden Chemical, Inc 520 112" Avenue N.E., 4' floor Bellevue, Washington 98004 Dear Mr. Daley: This responds to your January 25, 2005 letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask for clarification of §§ 171.1(d)(2) and 173.31(g) as revised under the final rule to Docket HM-223 (68 FR 61906; October 30, 2003). In accordance with this final rule, you ask if tank car unloading activities are subject to the HMR after the carrier has departed your property. On October 30, 2003, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket HM-223 entitled "Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage." The HM-223 final rule clarifies the applicability of the HMR to specific functions and activities, including hazardous materials loading and unloading operations and storage of hazardous materials during transportation. The final rule codifies in the HMR long-standing policies and interpretations concerning the applicability of the regulations to specific functions and operations. We initiated the rulemaking to better define the applicability of the HMR to loading, unloading, and storage operations at fixed facilities and to clarify the relationships among Federal, State, local, and tribal agencies involved in the regulation of hazardous materials. We are currently considering a number of petitions filed by the regulated industry asking that we reconsider certain aspects of the HM-223 final rule. On December 18, 2004, we published a final rule to delay the effective date of the HM-223 final rule until June 1, 2005 (69 FR 70902). Therefore, until June 1, 2005 tank car unloading must be performed in accordance with § 174.67, as required prior to HM-223. Under the HM-223 final rule, tank car unloading operations conducted by consignee personnel after the rail carrier has departed the consignee's premises generally are not subject to regulation under the HMR. As adopted in the HM-223 final rule, however, the requirements in § 173.31 will begin to apply to all tank car unloading operations on June 1, 2005, even when those operations are conducted by consignee personnel. Thus, the unloader must secure access to the track, place caution signs, and block the tank car wheels and set the handbrakes. As well, Occupational Safety and Health Administration (OSHA) standards may apply to such unloading operations. 171.1 (d) 2) 173.31(9) 050014#

Page 2HM-223 will also require that transloading operations, such as the transfer of a hazardous materials from a tank car to a cargo tank, continue to be subject to all applicable HMR requirements including § 174.67. The revisions to § 174.67 will also be effective on June 1, 2005. I hope this information is helpful. Please contact us if you require additional assistance. Sincerel Chief, Regulations Development Office of Hazardous Materials Standards#

Page 3JAN 25 'Ø5 10:20 FR BORDEN BELLEVUE 206 462 5487 TO 912023663012 P.01/Ø1 BORDEN CHEMICAL, INC. BORDEN Supko $111.1d(2) 3 173•31 (9) Fax (202) 366-3012 Loading/Unloading 05-0014 Director, Office of Hazardous Materials Standards Mr. Edward T. Mazzullo 400 7th Street S.W U.S. DOT/RSPA (DHM-10) Washington, D.C. 20590-0001 Dear Mr. Mazzullo, 1 am writing to request clarification of two recent additions to the 49 CFR concerning the unloading of hazardous Section 171.1(d)(2) Effective 10/1/2004 Functions not subject to the requirements of the HMR "Unloading of a hazardous material from a transport vehicle or a bulk package performed by a person employed by destination and departure from the consignce's premises of the camier's personnel of in the case of a private carrict, or working under contract to the consignee following delivery of the hazardous material by the carrier to its departure of the driver from the unloading area." Section 173.31(g) Tank car loading and unloading effective 10/1/2004 implies that the activities are subject to the HMR requirements. I won't restate the provisions but only point out that the addition of a provision pertaining to tank car unloading In the case of tank car unloading the carrier has in all instances I an aware departed our property prior to unloading. Are the unloading activities of a tank car still subject to the requirements of HMR? Your assistance in clarifying this issue would be greatly appreciated. Ricely Lugistics Operations Manager 520 112th Avenue N.E., 4th Floor • Bellevue, Washingion 9800+, P.O. Box 3626, 98009 • Telephone 425-455-4400 • Fax 425-462-5487 ** TOTAL PAGE.01 **#