{"operation":"document","citation":"05-0205","title":"Gallagher & Kennedy — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2006-06-06","effective_on":null,"summary":"05-0205 response to Gallagher & Kennedy concerning 172.101, 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0205.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0205.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0205","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050205.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh Street, S.W.\nWashington, D.C. 20590\nHazardous Materials Safety\nPipeline and\nAdministration\nJUN\n- 6 2006\nMr. Chris S. Leason\nAttorney at Law\nReference No. 05-0205\n2575 East Camelback Road\nGallagher & Kennedy\nPhoenix, AZ 85016-9225\nDear Mr. Leason:\nThis is in response to your letter and telephone conversation with a member of my staff\nasking on behalf of your client whether or not \"Copper sulfate pentahydrate,\" which\ncontains hydrated cupric sulfate, must be designated as a hazard substance or hazardous\nmaterial when offered for transportation in commerce under the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180). You state copper sulfate in its anhydrous\nform, \"Cupric sulfate,\" is a hazardous substance with a reportable quantity (RQ) of 10\npounds (4.54 kg). You did not provide a material safety data sheet for the mixture or\nspecify the concentration of cupric sulfate it contained. We apologize for the delay in\nresponding and any inconvenience this may have caused.\nUnder § 173.22 of the HMR, it is the shipper's responsibility to properly classify a\nhazardous material. This office does not perform that function. Under § 171.8. a\nhazardous substance (other than a radionuclide) is defined as a material, including its\nmixtures and solutions, that: (1) is listed in appendix A to § 172.101 of the HMR; (2) is in\na quantity, in one package, which equals or exceeds its reportable quantity (RQ) listed in\nconcentration by weight which equals or exceeds the concentration corresponding to the\nappendix A to§ 172.101 of the HMR; and (3) when in a mixture or solution, is in a\nRQ of the material, as shown in § 171.8. Based on the information you provided, it is our\nopinion that your client's material may meet the definition of a hazardous substance when\nthe mixture in one package contains 10 pounds or more of cupric sulfate at a concentration\nof 0.02 percent (200 PPM) or higher.\nIf your client determines the mixture is a hazardous substance that does not meet the\ndefinition of any other hazard class specified in § 171.8, it may be described as \"RQ\n172.101\n173.22\n050205\n\n<<<PAGE 2>>>\n\ndefinition of any other HMR hazard class, it is not regulated under the HMR.\nIf your client's mixture does not meet the RQ for cupric sulfate, and does not meet the\nI hope this satisfies your request.\nSincerely\nTate = 1a2\nHattie L. Mitchell, Chief\nRegulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nEdmonson\nGALLAGHER & KENNEDY\n3/72.101,817323\nATTORNEYS AT LAW\n— P.A. -\nAugust 23, 2005\nVIA U.S. MAIL\nMs. Susan Gorsky\nActing Director, Office of Hazardous Materials Standards\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nOffice of Hazardous Materials Safety\n400 7th St., S.W.\nWashington, DC 20590\nInterpretation Request - Use of the \"RQ\" Designation as Part of the Proper\nShipping Name\nDear Ms. Gorsky:\nThis letter seeks written confirmation of the conclusion reached during our conversation\non August 12, 2005 regarding whether there is a need to include a \"RQ\" designation as part of\nthe proper shipping name for copper sulfate pentahydrate, a \"hazardous material.\" Thank you\nfor taking the time to respond to my question and check with your colleagues in the Office of\nHazardous Materials Safety to confirm our conclusion that such a designation is not required.\nCopper sulfate pentahydrate is not identified by the U.S. Environmental Protection\nAgency (\"EPA\") as a \"hazardous substance\" under the Comprehensive Environmental Response,\nCompensation, and Liability Act (\"CERCLA\"), but cupric sulfate (the anhydrous form) is\nidentified as a CERCLA hazardous substance (CAS No. 7758-98-7) with a 10 pound RQ. See 40\nAppendix A, identifies:\nC.F.R. § 302.4, Table. The U.S. Department of Transportation (\"DOI\"), at 49 C.F.R. § 172.101,\nmaterials and their corresponding reportable quantities (RO's) that\n101(14) of the Comprehensive Environmental Response,\nare listed or designated as \"hazardous substamces\" under section\nCompensation, and Liability Act, 42 U.S.C. 9601(14) (CERCLA;\n42 U.S.C. 9601 et seg.). This listing fulfills the requirement of\nCERCLA, 42 U.S.C. 9656(a), that all \"hazardlous substances,\" as\ndefined in 42 U.S.C. 9601(14), be listed and regulated as\nhazardous materials under 49 U.S.C. 5101-5127.\n\n<<<PAGE 4>>>\n\nMs. Susan Gorsky\nAugust 23, 2005\nPage 2\nThus, at the direction of Congress, DOT is mandated to regulate hazardous substances, as\ndefined by EPA pursuant to CERCLA, as hazardous materials. 42 U.S.C. § 9656(a) (\"Each\nhazardous substance which is listed or designated as provided in section 9601(14) of this title\nshall, within 30 days after October 17, 1986, or at the time of such listing or designation,\nwhichever is later, be listed and regulated as a hazardous material under chapter 51 of title 49.\").\nBecause copper sulfate pentahydrate is not identified by EPA as a hazardous substance\nand, as a result, not contained on DOT's list of hazardous substances at 49 C.F.R. § 172.101,\nAppendix A, the proper shipping name for this material should not include the RQ designation.\nWe note that DOT defines a hazardous substance in 49 C.F.R. § 171.8 as \"a material, including\nits mixtures and solutions, that - (1) Is listed in the appendix A to 172.101 of this subchapter; (2)\nIs in a quantity, in one package, which equals or exceeds the reportable quantity (RQ) listed in\nappendix A to 172.101 of this subchapter; and (3) When in a mixture or solution ... is in a\nconcentration by weight which equals or exceeds the concentration corresponding to the RQ of\nthe material, as shown in the following table ....\" For a hazardous substance such as cupric\nsulfate with a RQ of 10 pounds, the concentration is 0.02 percent, or 200 ppm.\nAnalysis of my client's product indicates that it is entirely the hydrated copper sulfate\nalthough cupric sulfate is a hazardous substance identified in Appendix A to 49 C.F.R.\n(CAS No. 7758-99-8) and that no free cupric sulfate (CAS No. 7758-98-7) is present. Thus,\n§ 172.101, it is not present in a package in an amount equal to or exceeding the 10 pound RQ.\nFurther, although we do not believe that copper sulfate pentahydrate is a \"mixture\" or a\nor more of any hazardous constituent is released.\" 40 C.F.R. § 302.6(b)(1)(i). Because Congress\n\"solution,\" EPA's regulations only apply the RQ requirements to mixtures or solutions if a \"RQ\nintended DOT to regulate as hazardous materials only those hazardous substances identified by\nEPA as such, even assuming copper sulfate pentahydrate is a mixture or solution, the RQ\ndesignation would not apply as part of the proper shipping name because a RQ of a CERCLA\nhazardous substance could not be released from a single package of copper sulfate pentahydrate.\nIn sum, we conclude that the proper shipping name for our client's copper sulfate\npentahydrate, which is identified at 49 C.F.R. § 172.101, Appendix B as a marine pollutant, and,\nas such, is a DOT hazardous material, should not include the RQ designation.\n\n<<<PAGE 5>>>\n\nMs. Susan Gorsky\nAugust 23, 2005\nPage 3\nWe seek DOT's confirmation of this conclusion. Thank you for your assistance\n8059.\nwith this interpretation request. If you have any questions, please contact me at 602-530-\nVery truly yours,\nGALLAGHER & KENNEDY, P.A.\nChni Plan\nChris S. Leason\nCSL/ped\n1292907/25301-0499","truncated":false,"body_characters":7402}