Covington & Burling — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and JUL 6 2005 Administration Hazardous Materials Safety Mr. Zachary G. Parks Ref. No. 05-0121 Covington & Burling 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 Dear Mr. Parks: This responds to your letter dated May 19, 2005, requesting clarification of the classification procedures for aerosols under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask whether an aerosol that does not meet the definition of a Division 2.1 or 2.3 material, or any other hazard class, and does not exert in the packaging an absolute pressure of 280 kPa (40.6 psia) or greater at 20 °C (68 °F), should be classed as a Division 2.2 material. The answer is no. If a material does not meet the definition of hazardous substance a hazard class or division, and is not a or hazardous waste, it is not regulated under the HMR. See S 173.115 (b). we can be of further assistance. I trust this satisfies your inquiry. Please contact us if Sincerely, Talli 2. mit/ell Hattie L. Mitchell Chief, Office of Hazardous Materials Standards Regulatory Review and Reinvention 173.306 050121#

Page 205/19/2005 17:30 COVINGTON & BURLING 921 → 93663012 NO. 377 P002 COVINGTON & BURLING Stevens 201 PENNSYLVANIA AVENUE NV TEL 202.992.8000 JASHINGTON, DC 20004.240 WASHINGTON NEW YORK /73.306 FAX 202.962.0291 SAN FRANCISCO www.cov.com LONDON Denision 05-0/21 May 19, 2005 Mr. Michael Stevens Office of Hazardous Materials Safety US Department of Transportation 400 Seventh Street S.W. Washington, DC 20590 VIA FACSIMILE Re: Classification of Non-flammable Aerosols Dear Mr. Stevens: Thank you for taking the time to answer my questions today. As we discussed, I am writing to request a written clarification regarding the classification of non-flammable aerosols. According to 49 C.F.R. § 173.115(b), a Division 2.2 material is "any material (or mixture) which -- (1) Exerts in the packaging an absolute pressure of 280 kPa (40.6 psia) or greater at 20° C (68° F), and (2) Does not meet the definition of Division 2.1 or 2.2." My question is: Should an aeroso! that does not meet the definition of Division 2.1 or 2.3 (or any other hazard class) be classified as a Division 2.2 material even if its contents do not exert in the packaging an absolute pressure of 280 kPa or greater at 20° C? A clarification on this issue would be greatly appreciated. Please feel free to fax your reply to me at (202) 778-5576. If you have any questions, please do not hesitate to call me. Sincerely,#

Page 3of Transportation U.S. Department Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Administratior lazardous Materials Safety JUL 2 9 2005 Mr. William R. Mason Ref No.: 05-0130 Vice President of Operations ABC Coke P.O. Box 10246 Birmingham, Alabarna 35202 Dear Mr. Mason: This responds to your May 16, 2005 letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask for relief from the requirements in § 174.67(i) in effect at the time you submitted your request. On October 30, 2003, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket HM-223 (68 FR 61906) 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. The provisions of the HM-223 final rule became effective on June 1, 2005. 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 (see § 171.1(c)(3)). As adopted in the HM-223 final rule, however, the requirements in § 173.31(g) apply to all tank car unloading operations as of June 1, 2005, even when those operations are conducted by consignee personnel. cars placed for unloading would continue to apply" (68 FR 61918). As well, Occupational Safety and Health Administration (OSHA) standards may apply to such unloading operations. I hope this information is helpful. Please contact us if you require additional assistance. Office of Hazardous Materials Standards 174-6100 050130#

Page 4Supko Birmingham, Alabama 35202. P.O. Box 10246 9174.67(1) Telephone: 205-849-1300 Fax: 205-849-1322 • Tark Car Rail/Unloading BI NBC 05-0130 COHE May 16, 2005 Mr. Ed Mazzullo US Department of Transportation Office of Hazardous Materials Standards Washington, D.C. 20590 400 Seventh Street Dear Mr. Mazzullo: 174.67(i). We are requesting a variance to the DOT standard for unloading tank cars, 49 CFR At present, one of the raw materials that is received at the Tarrant, AL coke is located in Appendix A. It is received in a railcar. manufacturing plant is Sulfuric acid, 8,UN1830, PG II RQ. The Material Safety Data Sheet The railcar unloading process occurs in a primary and secondary phase. The unloading nes are attached to the railcar for the unloading process to begin, see standar perating procedure for the unloading process in Appendix B. The sulfuric acid i: every 16 hours. As the holding tanks are emptied, additional sulfuric acid is unloaded transferred to two holding tanks and is used to produce ammonia sulfate approximately from the railcar until it is emptied. There is continuous monitoring with camera in the secured interior of the facility and a derailer is in use. See the site plan in Appendix surveillance, see Appendix C. The rail line where the sulfuric acid is received is locatec D. continuously, we are requesting that the requirements of 174.6?(i) be waived and to since we have the camera and personnel that monitors the location of the railca allow the tank car to remain attached to the unloading lines to keep employees' potential exposure to the sulfuric acid to a minimum. lines attached to the railcar: In summary, there is no hazardous materials transportation risk of leaving the unloading • The location for unloading is in the secúred interior of the facility. The railcar is monitored continuusly by remote carreras and personnel; and health and safety by minimizing any unnecessary exposure to the corrosive material, Allowing the unloading lines to remain connected to the railcar will protect employees' sulfuric acid. at 205-849-1338. Please contact Steve Brakefield regarding the status of this request. He may be reached Sincerely, with as macon Vice President of Operations#