The Dow Chemical Company — Hazardous Materials Safety Interpretation

Page 1Urs esporation • APR 21 2006 400 Seventh Street, S.W. Washington, D.C. 20590 Pipeline and Administration Hazardous Materials Safety Mr. Phil Stewart Ref. No.: 06-0052 The Dow Chemical Company 1424 Vidal Street Sarina, ON N7T 8C6 Dear Mr. Stewart: This is in response to your letter dated February 24, 2006, requesting further clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). In your scenario, you indicate RCRA hazardous waste is shipped across and along public roadways that follow the boundaries of your facility. Specifically, you ask whether shipping paper requirements apply if your wastes are not required to be manifested under the U.S. material under the HMR. Environmental Protection Agency (EPA), but still meet the definition of a hazardous A hazardous waste, for the purposes of the HMR, is any material that is subject to the Hazardous Waste Manifest Requirements of the EPA specified in 40 CFR Part 262 (see § 171.8). As provided in § 172.205(a), no person may offer, transport, transfer, or deliver a hazardous waste unless an EPA Form 8700-22 and 8700-22A (when necessary) hazardous waste manifest is prepared in accordance with 40 CFR § 262.20 and is signed, carried, and given as required of that person. In the scenario you provided, the EPA does not require preparation of the manifest when hazardous waste is transported between two portions of a contiguous facility, across or along a public roadway that follows the boundary of the facility. Therefore, your material does not meet the definition of a hazardous waste in § 171.8, and the Department of Transportation does not require a waste manifest to be created. However, if your material meets the definition of a hazardous material in § 171.8 and is transported across or along a Pabi r, slat loving the ard ap if abe faciy, the shipping paper requirements in I hope this clarifies your request, thank OBt Charles E. Betts Senior Transportation Specialis Office of Hazardous Materials Standard: 111.8 172-205(a) 060052#

Page 2The Dow Chemical Company Midland, MI 48667 February 24, 2006 BAH John Gale 3171.8 Chief, Standards Development Office of Hazardous Materials Standards 3,172.101 400 Seventh Street SW Washington, D.C. 20590 applicability 06 ^ 0052 Reference 05-0298 In follow-up to your response letter dated January 17, 2006, concerning the transportation of waste, we are requesting additional clarification. The material we would transport is in fact a RCRA hazardous waste, not a non-hazardous waste as indicated in your response. In some cases the waste would also be a DOT hazardous material, and our question centers on a potential (presumably inadvertent) conflict between RCRA regulations and DOT regulations. Executive Summary EPA (under the RCRA program), expressly does not require a manifest when hazardous waste is transported between two portions of a contiguous facility, across or along a public roadway that that follows the boundary of the facility. In contrast, DOT's regulations are silent on this subject and could be interpreted as requiring a manifest under those circumstances. We are requesting an interpretation that the DOT regulations are in harmony with the RCRA regulations. This would allow us to follow the RCRA regulations (i.e., not issuing a manifest), so long as other appropriate shipping papers accompany the waste in accordance with normal DOT requirements. Discussion Our company has a large (roughly 1900-acre) manufacturing facility with its own wastewater treatment plant, hazardous waste imcinerator, and hazardous waste landfill. All are fully permitted. Due to the size of our facility, public roads divide some portions of the facility from other portions. However, the facility is considered contiguous under applicable state and federal RCRA provisions. The facility includes a chemical storage area known as "US-10 Tank Farm." This tank farm, which occasionally generates small amounts of hazardous waste, is physically located across a public road from other portions our site. The hazardous waste landfill is similarly separated from other portions of our sitte by a different public road. Both roads run along our facility boundary. In order to transport waste from US-10 Tank Farm to 2/27/2006 Page ! of 2#

Page 3our landfill, a truck would need to drive along these public roads. At all times while on these public roads, the truck would be contiguous to a boundary of our site. EPA specifically exempts this situation from needing a manifest: see 40 CFR 262.20(f) The requirements of this subpart and §262.32(b) do not apply to the transport of hazardous wastes on a public or private right-of-way within or along the border of contiguous property under the control of the same person, even if such contiguous ransporters set forth in 40 CFR 263.30 and 263.31 in the event of a discharge of hazardous waste on a public or private right-of-way. We have attached several additional documents from the Environmental Protection these circumstances. Agency (EPA) to further substantiate the fact that EPA does not require a manifest in : In contrast, the DOT regulations at 172.205 could be interpreted, at least superficially, as requiring a manifest. This is because the DOT regulations are silent on the subject of transportation along a facility boundary between portions of the facility. We anticipate that DOT did not intend to create an inconsistency between the regulatory programs. Rather, we believe that DOT would have intended for its regulations to be consistent with the RCRA regulations. Consequently, in situations where EPA has said no manifest is *1 required, we are hopeful that DOT will accept normal shipping papers. We would -appreciate your written confirmation. Please contact Phil Stewart or Sharon Woolman as given below if you have any questions regarding this request. Regards, Phil Stewart Sharon Woolman The Dow Chemical Company The Dow Chemical Company 1425 Vidal Street 1261 Building Sarnia, ON N7T 8C6 Midland, MI 48667 519-339-5047 (office) 989-636-4644 (office) 519-339-3912 (fax) 989-638-7142 (fax) Attachments: DOT Letter EPA opinion letters * Depc 400 determine EPA RCRA EPA Letter EPA venth.tif (52 k your.tif (21 knse Contiguotiguous Propeous Property | 2/27/2006 Page 2 of 2#