{"operation":"document","citation":"08-0050","title":"Bell, Boyd & Lloyd, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2008-07-02","effective_on":null,"summary":"08-0050 response to Bell, Boyd & Lloyd, LLP concerning 172.101.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0050.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0050.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0050","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2008/080050.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Ave.. S.E.\nWashington, DC 20590\nJUL 2 2008\nMr. Thomas R. Carey\nBell, Boyd & Lloyd, LLP\n70 W. Madison St.\nSuite 3 100\nChicago, IL 60602\nRef. No. 08-0050\nDear Mr. Carey:\nThis is in response to your August 29,2007 request for clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171 -1 80) applicable to the hazard class and\ntransportation by highway and rail of forbidden materials that are stabilized or diluted. I\napologize for our delay in responding and any inconvenience this may have caused.\nIn your letter, you state that the company you represent, CDG Research Corporation, has\nmanufactured a proprietary 0.3% (i.e., 3,000 parts-per-million) chlorine dioxide aqueous\nsolution named \"CDG Solution 3000.\" This product is manufactured from a material\nforbidden for transportation under the HMR, pure chlorine dioxide, but has been diluted more\nthan 300:l (99.7%) with water and is stabilized. In your letter, you also state that: (I) test data\nshow that CDG Solution 3000, at full strength, exhibits corrosion on steel and aluminum\nsurfaces exceeding 6.25 mm (0.25 inch) a year at a test temperature of 55 OC (130 OF); (2) test\ndata show that this material does not cause full thickness destruction of intact skin tissue\nwithin an observation period of up to 14 days starting after the exposure time of more than 60\nminutes but not more than 4 hours; and (3) the product is not an organic peroxide, explosive,\nor self-reactive material as defined by the HMR, and is not listed as a marine pollutant. You\nask whether: (1) this product is subject to the prohibition of \"Chlorine dioxide (not hydrate)\"\nunder the HMR; (2) there are requirements for formal DOT approval or authorization prior to\nsurface transportation by highway or rail; and (3) if this product should be classed as a\n\"corrosive\" material (Class 8) with a Packing Group of 111.\nAs specified in 5 172.101(d)(l), if any specifically listed, pure, forbidden material is stabilized\nor diluted or incorporated in a device and is classed in accordance with the definitions of\nhazardous materials contained in Part 173 of the HMR, it is no longer considered a forbidden\nmaterial. It is your responsibility to ensure the material is stabilized, classed, and transported\nin accordance with the HMR. Organic peroxides, explosives, and self-reactive materials\nrequire formal approval from the Associate Administrator for Hazardous Materials Safety.\nFor other than these materials, no formal approval or authorization is required from DOT to\ndilute, stabilize, and transport the material. In addition, the proper shipping name \"Chlorine\ndioxide (not hydrate)\" does not apply to the diluted and stabilized material as described in\n\n<<<PAGE 2>>>\n\nyour letter. Your product appears to meet the definition of a corrosive material (Class 8),\nPacking Group 111. Therefore, a more appropriate proper shipping description is \"Corrosive\nliquid n.o.s., (0.3% Chlorine dioxide), 8, UN1760, PG 111. If you believe the diluted condition\nof 3000 ppm is stabilized, an appropriate proper shipping description is \"Corrosive liquid\nn.o.s., (0.3% Chlorine dioxide, stabilized), 8, UN1760, PG 111.\nI hope this information is helpful.\nSincerely,\n@hl usan Gorsky,\nRegulations Officer\nOfice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nBELL, BOYD & LLOYD L L P ~ 171\nMEMORANDUM 4 173-?I\nPRIVILEGED li CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION\nATTORNEY WORK PRODUCT P{ope r Sh lpph\nof do@ d \"\"\nTO: Aaron Rosenblatt, Chairman\nCDG Research Corporation (\"CDG\")\nFROM: Thomas R. Carey\nDATE: August 29,2007\nSUBJECT: Transport of CDG Solution 3000TM Chlorine Dioxide Aqueous Solution\nI. Introduction:\nCDG makes a proprietary 0.3 % (i.e., 3,000 parts-per-million) chlorine dioxide aqueous solution\n(\"CDG Solution 3000 \"; \"Product\"). On March 8, 2007, CDG Solution 3000 was registered by\nthe United States Environmental Protection Agency (\"USEPA\") as an anti-microbial pesticide\nunder the provisions of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The\nEPA registration number is 75757-2.\nThis memorandum reviews government regulations, especially those of the United States\nDepartment of Transportation (\"DOT'), pertaining to the surface transport of CDG Solution\n3000 by motor vehicle or rail car. Issues pertaining to transport of the Product by air or water are\nnot within the scope of the present review.\nSpecifically, we address the following issues:\nI . The relationship of CDG Solution 3000 to the prohibition on transporting \"chlorine dioxide\n(not hydrate)\", which is listed as a \"Forbidden Material\" in the DOT Hazardous Materials\nRegulations (\"HMR\");\n2. Requirements, if any, for formal DOT approval or authorization for surface transport of CDG\nSolution 3000 by motor vehicle or rail car;\n3. The proper DOT classification(s) for CDG Solution 3000; and\n4. Special placards and driver-licensing requirements, if any, pertaining to surface transport of\nCDG Solution 3000 by motor vehicle or rail car.\n\n<<<PAGE 4>>>\n\n11. Underlying Facts:\nOur conclusions are based on our understanding of certain underlying facts, including the\nfollowing:\n1. CDG wishes to transport CDG Solution 3000 by surface transportation means - i.e., motor\nvehicle or rail car.\n2. Test data show that CDG Solution 3000, at full strength, exhibits corrosion on steel and\naluminum surfaces exceeding 6.25 rnm (0.25 inch) a year at a test temperature of 55 OC\n(130 OF).\n3. Test data show that CDG Solution 3000 does not cause full thickness destruction of intact\nskin tissue within an observation period of up to 14 days starting after the exposure time of\nmore than 60 minutes but not more than 4 hours.\n4. CDG Solution 3000 is not an organic peroxide, explosive, or self-reactive material, as\ndefined in 49 C.F.R. 44 173.128, 173.50, and 173.124, respectively.\n5. CDG Solution 3000 is not listed as a marine pollutant in 49 C.F.R. 9 172.101, Hazardous\nMaterials Table, Appendix B - Marine Pollutants.\n111. Citations:\n49 C.F.R. 4 172.101(d)(l), Section 173.21(a), provides:\nUnless otherwise provided in this subchapter, the offering for transportation or\ntransportation of the following is forbidden:\n(I) Materials that are designated \"Forbidden\" in Column 3 of 4 172.10 1\nSection 172.10l(d)(l) of the HMR provides:\n(d) Column 3. Hazard Class or Division. Column 3 [of the Table] contains a designation\nof the Hazard Class or Division corresponding to each proper shipping name, or the word\n\"Forbidden\".\n(I) A material for which the entry in this column is \"Forbidden\" may not be offered for\ntransportation or transported. This prohibition does not apply if the material is\ndiluted, stabilized or incorporated in a device and it is classed in accordance witb\nthe definitions of hazardous materials contained in part 173 of this subchapter.\n\n<<<PAGE 5>>>\n\n49 C.F.R. 5 171.8 - D e f ~ t i o n s and abbreviations, provides:\nStabilized means that the hazardous material is in a condition that precludes uncontrolled\nreaction.\n49 C.F.R. 4 173.136(a), Class 8-Definitions, provides:\nFor the purpose of this sub-chapter, \"corrosive material\" (Class 8) means a liquid.. .that\ncauses full thickness destruction of human skin at the site of contact within a specified\nperiod of time. A liquid that has a severe corrosion rate on steel or aluminum.. .is also a\ncorrosive material.\n49 C.F.R. 5 173.137(~)(2), Class 8-Assignment of Packing Group, provides:\nPacking Group III. Materials.. .that do not cause full thickness destruction of intact skin\ntissue but exhibit a corrosion on steel or aluminum surfaces exceeding 6.25 mm (0.25\ninch) a year at a test temperature of 55 OC (130 OF).\n49 C.F.R. 5 173.154(d)(l-2) Exceptions for Class 8 (corrosive materials), provides:\n(d) Materials corrosive to aluminum or steel only. Except for a hazardous substance, a\nhazardous waste, or a marine pollutant, a material classed as a Class 8, Packing Group\n111, material solely because of its corrosive effect-\n(1) On aluminum is not subject to any other requirements of this subchapter when\ntransported by motor vehicle or rail car in a packaging constructed of materials that will\nnot react dangerously with or be degraded by the corrosive material; or\n(2) On steel is not subject to any other requirements of this subchapter when transported\nby motor vehicle or rail car in a bulk packaging constructed of materials that will not\nreact dangerously with or be degraded by the corrosive material.\nIV. Discussion:\nThe material \"chlorine dioxide (not hydrate)\" - i.e., pure chlorine dioxide- is classified as a\n\"Forbidden Material\" in the HMR and may not be offered for transportation or transported.\nHowever, Section 172.10 1 (d)( 1) (see above) expressly provides that the \"prohibition [on\nforbidden material] does not apply if the material is diluted [or] stabilized . . . and it is classed in\naccordance with the definitions of hazardous materials contained in part 173.\"\nCDG Solution 3000, which is a 0.3% aqueous solution, is diluted more than 330:l (99.7%) with\nwater, in which diluted condition it is stabilized - i.e., it is precluded from undergoing\nuncontrolled reaction.\n\n<<<PAGE 6>>>\n\nCDG Solution 3000 falls clearly within the definitions of hazardous materials in part 173.\nSpecifically, it is a \"corrosive material\" (Class 8), (see 49 C.F.R. 5 173.136(a), above), based on\nsteel and aluminum corrosion test data.\nCDG Solution 3000 falls clearly within the definition of a \"Packing Group III\" material (see 49\nC.F.R. 5 173.137 (c)(2), above), based on steel and aluminum corrosion test data and skin\ncorrosion test data.\nPart 173 of the HMR contains express prior approval requirements for the transport, or offering\nfor transportation, of organic peroxides, explosives and self-reactive materials. (See 49 C.F.R.\n5 5 1 73.128(d); 173.5 1 (a); 173.124(a)(2)(iii).) The regulatory provisions covering Class 8\nmaterials do not contain a corresponding approval requirement.\nCDG Solution 3000 is a \"corrosive material\" (Class 8), solely because it is corrosive to steel and\naluminum. It is therefore meets the requirements of 49 C.F.R. 5 173.154(d)(l-2), Exceptions for\nClass 8 (corrosive materials).\nIV. Supplementary Information:\nA letter from Delmer F. Billings, Of'fice of Hazardous Materials Standards, to Lauren Malone,\nOnyx Environmental Services LLC, Ref No. 99-0255 (Apr. 12, 2000)(Ref. 99-0255), clarified\nthe hazard class and transportation of forbidden materials that have been stabilized or diluted.\nRef. 99-0255 states as follows:\nif any specifically listed, pure forbidden material is stabilized or diluted to reduce or\neliminate the hazards, it is then no longer considered a forbidden material. It is your\nresponsibility to ensure it is stabilized, classed and transported in accordance with the\nHMR. Organic peroxides, explosives, and self reactive materials always require formal\napproval from the Associate Administrator for Hazardous Materials Safety. For other\nthan these materials, no formal approval or authorization is required from DOT to dilute,\nstabilize, and transport the material.\nV. Conclusions:\nBased on our review and interpretation of the HMR and DOT regulations, as further enlightened\nby Ref. 99-0255, we conclude that:\n1. CDG Solution 3000 is not subject to the prohibition of \"chlorine dioxide (not hydrate) \" as a\n\"Forbidden Material\" under HMR.\n2. There are no requirements for formal DOT approval or authorization prior to surface\ntransport of CDG Solution 3000 by motor vehicle or rail car.\n\n<<<PAGE 7>>>\n\n3. The proper DOT classifications for CDG Solution 3000 are:\na. Corrosive material (Class 8), and\nb. Packing Group 111.\n4. There are no special placards or driver-licensing requirements for vehicles used for surface\ntransport of CDG Solution 3000, subject to the Product being packaged and shipped in\ncontainers that will not react dangerously with or be degraded by the Product (e.g., plastic).\nTRC: tyh\n4409 1 1","truncated":false,"body_characters":12012}