Foley & Lardner, LLP — Hazardous Materials Safety Interpretation

Page 1J.S. Departmen f Transportatior 400 Seventh Street, S.W. Washirigton, D.C. 20590 Pipeline and Administration Hazardous Materials Safety FEB 28 2007 Ms. Katherine E. Lazarski Ref. No.: 07-0007 Foley & Lardner, LLP 777 East Wisconsin Avenue Milwaukee, WI 53202-5306 Dear Ms. Lazarski: This is in response to your December 26, 2006 letter regarding the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the transportation of certain ultracapacitors. In your letter, you state the ultracapacitors consist of activated carbon saturated with a solution of quaternary salt and acetonitrile contained in an aluminum container sealed with a rubber bung. The ultracapacitors are individually packaged in vacuum sealed plastic bags in quantities between 50 and 500 depending on size. The plastic bags are placed in a corrugated fiberboard box surrounded by foam packing peanuts. Individual ultracapacitors contain between 0.09 grams and 6.58 grams of acetonitrile. You cite a letter of interpretation dated May 20, 2003, in which we provided a determination, based on information provided in that letter, that an ultracapacitor containing 1.5 grams or less of acetonitrile absorbed in activated carbon in a sealed steel container is in a quantity and a forrn that does not pose a hazard in transportation. An ultracapacitor of a similar construction containing 1.5 grams or less of acetonitrile contained in a sealed aluminum container packaged in individual, vacuum sealed plastic bags is also in a quantity and form that does not pose a hazard in transportation However, you did not provide information for us to determine if the ultracapacitors referenced in your letter that contain greater than 1.5 grams of acetonitrile are in a quantity and form that does not pose a hazard in transportation. Therefore, the ultracapacitors described in your letter that contain greater than 1.5 grams of acetonitrile, should be described as "Dangerous Goods in Apparatus, 9, UN3363" (see § 173.222). Alternatively, these ultracpacitors may be transported in accordance with the small quantity exceptions, provided the requirements of § 173.4 are met. I hope this information is helpful. Please contact us if you require additional assistance. Sincere Chief, Standards Development Office of Hazardous Materials Standards 171.1 172./01 070007#

Page 2Leary FOLEY $171.1 ATTORNEYS AT LAW FOLEY & LARDNER LLP §172,101 777 EAST WISCONSIN AVENUE Applica bubitmber 26,2006 414.271.2400 TEL MILWAL KEE, WI 53202-5306 414.297.4900 FAX VIA HAND DELIVERY 07-0007 www.foley.com 414.297.5657 WRITER'S DIRECT LINE klazarski@foley.com EMAIL 183525.0100 CLIENT/ MATTER NUMBER Joseph Solomey Assistant Chief Counsel U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 400 7th Street, SW Room 8417 Washington, DC 20590-0001 Re: Tecate Industries Ultracapacitors Dear Mr. Solomey: regarding applicability of the hazardous materials transportation regulations at 49 CFR 171-180 (the I am writing today on behalf of Tecate Industries ("Tecate") to request clarification "HMR") to small ultracapacitors. Tecate is a provider of capacitors, ultracapacitors and other materials to the electronics small ultracapacitors. In 2003, Maxwell requested a written interpretation that their ultracapacitors were industry. Tecate is currently a distributor for Maxwell Technologies ("Maxwell"), which manufactures a copy of the letter for your review. not subject to the HMR, and received such an interpretation by letter dated May 20, 2003. I have attached ultracapacitors are very similar to the Maxwell ultracapacitors, and for that reason Tecate believes they Tecate has a new line of ultracapacitors called "TPL" ultracapacitors. These are also not subject to the HMR. Both the Maxwell and TPL ultracapacitors contain a small quantity of is very small (see table below) and, for the reasons discussed below, Tecate does not believe they pose a absorbed acetonitrile (a flammable liquid) inside the ultracapacitor, however, the quantity of acetonitrile risk in transportation. The TPL ultracapacitors are manufactured in a variety of sizes, which are listed below (physically, about the same size as a standard C battery or smaller). The ultracapacitors are small acetonitrile. The largest of the TPL capacitors contains less than 7 grams of acetonitrile. The aluminum not be ingested. BRUSSELS BOSTON SACRAMENTO DETROIT CHICAGO MILWAUKEE SAN DIEGO/DEL MAR SAN DIEGO TAMPA TALLAHASSEE JACKSONVILLE EW YORI TOKYO IRLANDO WASHINGTON, D.C MILW_2161149.1#

Page 3The amount of acetonitrile in each TPL capacitor is provided below: Series Voltage Capacitance (V) (F) Dimension (D*L) Acetonitrile (g) Content of TPL 2.7V TPL 2.7V 100 22*45 70 20*40 6.58 TPL 2.7V TPL 2.7V 70 18*45 3.48 70 20*40 3.18 TPL 2.7V 3.70 60 18º45 3.36 TPL 2.7V 50 18*40 3.14 TPL 2.7V 30 16*31.5 2.07 TPL 2.7V 25 16*25 1.68 TPL 2.7V 22 12.5*35.5 1.42 TPL TPL 2.7V 10 2.7V 10*30 0.90 TPL 2.7V 2 4 10*20 8*16 0.38 0.17 TPL TPL 2.7V 2.7V 0.5 1.5 8*12 8*14 0.14 0.09 between 50 and 500, depending on size. The capacitors are packaged in vacuum sealed watertight plastic bags in quantities of surrounded by Styrofoam packing peanuts. Therefore, even if an ultracapacitor were to leak, the The plastic bags are then placed in corrugated cardboard boxes minimal amount of acetonitrile should be contained in the plastic bag or absorbed by the packing peanuts. Although the TPL ultracapacitors are a new product, Tecate has been shipping the very similar Maxwell ultracapacitors for many years without any incident. contain hazardous materials in "an amount and form" that poses an "unreasonable risk to health and For the above mentioned reasons, Tecate believes that the TPL ultracapacitors do not ultracapacitors are subject to the regulations. Ultracapacitors themselves are not listed on the table at 49 safety or property." See 49 U.S.C. § 5103(a). In reviewing the HMR, it is unclear whether the TPL CFR 172.101. Acetonitrile is listed on the table as a flammable liquid, however the ultracapacitors appear to meet the exceptions for Class 3 flammable liquids in § 173.150 because the inner packagings contain less than 1.0 L. However, it is unclear to us if this exception applies to all of the HMR or if it is more limited. In addition, these TPL ultracapacitors are very similar to the Maxwell ultracapacitors which DOT has already confirmed are not subject to the HMR subject to the HMR. If you require any additional information, please do not hesitate to contact me at We are requesting, therefore, your confirmation that the TPL ultracapacitors are not (414) 297-5657. Best regards, Enclosures Katherine E. Lazarsk CC: Tom Wight MILW_2161149.1#