Steptoe & Johnson, LLP — Hazardous Materials Safety Interpretation

Page 1J.S. Department SEP 7 2005 of Transportatior Washington, D.C. 20590 400 Seventh Street, S.W Pipeline and Administration Hazardous Materials Safety David H. Coburn, Esq. Reference No.: 05-0187 Attorney for Georgia-Pacific Corp. Steptoe & Johnson, LLP 1330 Connecticut Avenue, N.W. Washington, DC 20036-3000 Dear Mr. Coburn: This responds to your letter requesting clarification of the term "unloading incidental to movement" in § 171.8 of the Hazardous Materials Regulations (HMR; 49 CFR. Parts 171-180) on behalf of your client, Georgia-Pacific Corporation. Specifically, you ask whether unloading of bulk or other hazardous materials while the power unit is still attached to the transport vehicle and the driver of the motor vehicle being unloaded is at the same facility "unloading incidental to movement." where the unloading occurs, but is not present at the actual site of the unloading, constitutes The answer is no. Section 171.8 defines "unloading incidental to movement" to mean "removing a packaged or containerized hazardous material from a transport vehicle, aircraft, or vessel or, for a bulk packaging, emptying a hazardous material from the bulk packaging after the hazardous material has been delivered to the consignee and prior to the delivery carrier's departure from the consignee's facility or premises, or, in the case of a private motor carrier, while the driver of the motor vehicle from which the hazardous material is being unloaded immediately after movement is completed is present during the unloading operation." We do not consider a driver to be "present" when he is in the facility where unloading operations are performed but is not at the actual unloading site where he can observe the unloading process. Hence, such unloading is not. "incidental to movement." I trust this satisfies your inquiry. Sincerely, Hotle z. michall Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Standards 111.8 050187#

Page 2Corbin , STEPTOE &)OHNSON «P 517! 8 ATTORNEYS AT LAW Definitions 05-0187 202.429.8063 David H. Coburn 1330 Connecticut Avenue. NW dcoburn@steptoe.com Washington. DC 20036-1795 Tel 202.429.3000 Fax 202.429.3902 steptoe.com July 29, 2005 Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Safety Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation 400 Seventh Street, S W Washington, DC 20590 Re: Request for Clarification -- HM 223, Applicability of Hazardous Materials Regulations to Loading, Unloading and Storage Dear Ms. Mitchell: By this letter, Georgia-Pacific Corp. hereby requests clarification of a question that has arisen in connection with the definition of the term "unloading incidental to movement" in section 171.8 of the Hazardous Materials Regulations, 49 C.F.R. § 171.8. As relevant, that section states as follows: Unloading incidental to movement means removing a packaged or for a bulk packaging, emptying a hazardous material from the bulk packaging containerized hazardous material from a transport vehicle, aircraft, or vessel, or after the hazardous material has been delivered to the consignee when performed by carrier personnel or in the presence of carrier personnel or, in the case of a private motor carrier, while the driver of the motor vehicle from which the hazardous material is being unloaded immediately after movement is completed is present during the unloading operation. The question is whether the unloading of bulk or other hazardous materials constitutes "unloading incidental to movement" when the driver of the motor vehicle being unloaded is present at the same facility at which the unloading is occurring, but is not present at the actual site of the unloading, and the power unit operated by that driver prior to unloading remains attached to the trailer or container being unloaded. This question most often arises in connection with private motor carriage operations conducted by Georgia-Pacific. Unloading often occurs at Georgia-Pacific facilities where the driver's services are not used in connection with unloading operations that follow the driver's delivery WASHINGTON PHOENIX LOS ANGELES LONDON BRUSSELS#

Page 3STEPTOE &JOHNSON HIP Ms. Hattie L, Mitchell July 29, 2005 Page 2 of a load, but the driver's power unit remains at the unloading site even though the driver is at another place in the facility or has left the facility. Our judgment is that since the unloading is not performed either by carrier personnel, or in the presence of the driver or other carrier personnel, the unloading is not "unloading incidental to movement" and thus not within the scope of the HMR. The agency's regulatory authority in this situation appears to turn on the presence or not of the driver at the site of unloading, as opposed to some other point in the same facility. This interpretation finds support in the above-quoted definition of "unloading incidental to movement" and at § 171.1(d)(2), which likewise provides that the HMR do not apply to unloading operations where the driver of a private motor vehicle is not present in the unloading decision, addresses precisely the situation of the carrier's power unit's continued attachment to the However, neither the agency's October 30, 2003 final rules decision, or its April 15, 2005 trailer or container being unloaded. The October 2003 decision notes that unloading would not be subject to the HMR where, among other things, the carrier has "detached its motive power." See 63 Fed. Reg. at 61917. Further, the April 2005 decision makes clear that in the situation where the driver is present at the facility for purposes of picking up another load (and thus presumably has removed his power unit from the site of the unloading), but is not present at the point of unloading, then the unloading is not "unloading incidental to movement." 70 Fed. Reg. at 20021. Nonetheless, our understanding is that whether the motive power unit remains attached to the trailer or container being unloaded is not a factor in determining whether or not the HMR apply. Rather, the critical factor in terms of HMR applicability appears to be the presence or not of the driver or other carrier personnel. We look forward to your written confirmation that our understanding is correct. Respectfully, and H. Elim ays David H. Coburn Attorney for Georgia-Pacific Corp.#