Scopelitis, Garvin, Light & Hanson — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh Street, S.W. Washington, D.C. 20590 Pipeline and Hazardous Materials Safety Administration MAY 15 2006 Mr. Timothy W. Wiseman Ref. No.: 06-0077 Scopelitis, Garvin, Light & Hanson Managing Partner 10 W. Market Street Suite 1500 Indianapolis, IN 46204 Mr. Wiseman: This is in response to your letter requesting clarification of the Hazardous Materials the transportation of totes marked with "ORM-D" if they contain no hazardous material. Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if § 172.303(b) allows for The intent of § 172.303 is to prohibit, with certain exceptions, the offering of a package that is marked to indicate the presence of a hazardous material when a hazardous material is not actually present in the package. Section 172.303 is consistent with the empty packaging requirements provided in § 173.29(b). More applicable to the scenario you describe are 49 U.S.C. § 5104(a)(2) and § 171.2(k) of the HMR, which provide that no person may mark a package or otherwise represent that a hazardous material is present in a package unless the hazardous material is actually present. Therefore, under § 171.2(k), any marking (e.g., ORM-D) or other hazard communication indicating the presence of a hazardous material when a hazardous material is not actually present must be removed, obliterated, or securely covered in transportation. I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, John'A. Gale Chief, Standards Development Office of Hazardous Materials Standards 172.303 060077 171.2 (K) 5104 (a)(2)#

Page 2• • Supko $172.303 SCOPELITIS, GARVIN, LIGHT & HANSON Markings PROFESSIONAL CORPORATION ATTORNEYS AT LAW 06-0077 IMOTHY W. WISEMAN twiseman@scopelitis.com ANAGING PARTNE www.scopelitis.com March 23, 2006 Mr. Edward T. Mazzullo Director, Office of Hazardous Materials Standards U.S. DOT/PHMSA (PHH-10) 400 Seventh Street, S.W. Washington, D.C. 20590-0001 Re: Request for Hazardous Material Regulation Interpretation Dear Mr. Mazzullo: I write to request your office's assistance in understanding the applicability of the hazardous material regulations to the specific operations of one of my then arranges to have these distribution centers to various retail stores by common or private carriers. same totes transported from its central My client's specific question deals with the package marking requirements under 49 C.F.R. § 172.303. In this case, my client's vendor may, on occasion, tender totes marked as "ORM-D", but containing no hazardous materials, pursuant to the limited exception contained in 49 C.F.R. § 172.303(b). My client would like to be able to then move those totes from its distribution totes. The question posed by my client is whether 49 C.F.R. § 172.303(b) centers to its various retail stores without having to repackage or remark the would allow my client to transport totes marked as "ORM-D", but containing no hazardous materials, to its various retail establishments. SERVICES IN CALIFORNIA PROVIDED BY SCOPELITIS, GARVIN, LIGHT & HANSON, LIMITED LIABILITY PARTNERSHIP#

Page 3• Page 2 March 23, 2006 If you need any additional information to respond to this request for interpretation, please do not hesitate to contact me. I look forward to hearing from you. Very truly yours, TUD- Timothy W. Wiseman TWW/kkc SCOPELITIS, GARVIN, LIGHT & HANSON#