Durham, Jones & Pinegar, P.C. — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, D.C. 20590 Mr. Michael F. Leavitt Durham, Jones & Pinegar, P.C. 193 East 200 North, Third Floor St. George, Utah 84770-2879 Ref. No.: 08-0289 Dear Mr. Leavitt: This responds to your letter regarding the highway transportation of a small bulk delivery tank containing oxygen, refrigerated liquid for home delivery for healthcare purposes. Your client, Rotech Healthcare, Inc., (Rotech) received a citation from the Utah Highway Patrol (UHP) concerning a violation of $ 173.24 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171 - 180). Specifically, you ask if your client's understanding is correct that venting is permissible to reduce internal pressure that may develop by the evolution of gas from the contents under certain conditions. Based on the information enclosed with your letter, the tank conforms to the requirements in $ 173.320. Under $ 173.320, atmospheric gases (e.g., oxygen, nitrogen, carbon dioxide) and helium in Dewar flasks, insulated cylinders, insulated portable tanks, insulated cargo tanks, and insulated tank cars, designed and constructed so that the pressure in such packagings will not exceed 25.3 psig under ambient temperature conditions during transportation are not subject to the requirements of the HMR when transported by motor vehicle or railcar except as specified in paragraphs (a)(l), (a)(2), and (a)(3) of this section. Thus, as stated in $ 173.320(a)(l), the design of the tank must allow venting through the pressure control valve to prevent any buildup of any internal pressure. I hope this information is helpful. If we can be of further assistance, please contact us. Sincerely, / I Charles E. B\etts Chief, Standards Development ffice of Hazardous Materials Standards#

Page 2DURHAM JONES & PINEGAR, P.C. 192 East 200 North, Third Floor Michael F. Leavitt Attorney at Law Jo8-~Zg'j St. George, Utah 84770-2879 mike.leavitt@utahlaw.com 435.674.0400 435.628.161 0 Fax www.djpIaw.com November 1 I, 2008 Via U.S. Mail and Email (Edward.mazzullo@dot.gov) Edward Mazzullo UNITED STATES DEPARTMENT OF TRANSPORTATION 1200 New Jersey Avenue SE Washington DC, 20590 Re: Request for Written Interruption 49 CFR 5 173.24 Dear Mr. Mazzullo: This firm represents a company called Rotech Healthcare, Inc., which is engaged in the business of, among other things, transporting oxygen over roadways to individuals in their homes for healthcare purposes. Mr. David Clark, a hazardous materials inspector for the Department of Transportation, suggested that we contact you concerning a citation issued from the Utah Highway Patrol ("UHP") to one of Rotech's drivers concerning the alleged violation of 49 C.F.R. 5173.24 entitled "General Requirements for packagings and packages." On or about February 28, 2008, Rotech's driver, Van Gudmundson, was traveling on a highway in Utah when he was pulled over for a routine vehicle examination by a UHP officer. Mounted in Mr. Gudmundson's truck was a small bulk delivery tank filled with oxygen, refrigerated liquid UN1073. The tank is equipped with an "over the road" relief valve, which is designed, by the manufacturer, to open and release oxygen into the air during transit any time the pressure in the tank reaches 25.3 psi. Mr. Gudmundson had already receive a warning from the same UHP officer. On this occasion, Mr. Gudmundson received a citation fiom the UHP officer under 49 C.F.R. 5173.24. The officer justified the citation by claiming that, under that regulation, the tank is releasing a "hazardous material" into the environment during transit. . It is Rotech's understanding that under 49 C.F.R. 5173.24 part (g), venting is permissible to reduce internal pressure which may develop by the evolution of gas from the contents under certain conditions. The vessels used by Rotech meet these conditions so therefore it is their contention that the valves should and must be used to reduce the internal pressure while in transit. A copy of the manufacturers manual has been provided for your convenience. Rotech has been unable to persuade the SALT LAKE CITY 1 OGDEN 1 ST. GEORGE ( LAS VEGAS#

Page 3Edward Mazzulo November 1 1,2008 Page 2 UHP officer officer or his supervisor that the officer's interpretation of these regulations is incorrect. Consequently, criminal misdemeanor charges are pending for the use of the pressure release valve in the manner which clearly seems to be required by the regulation. In addition, Rotech has been cited and paid a fine in the past in Maine for not using the equipped over-the-road relief valve while the vehicle was in transit. This inconsistency among state transportation inspectors has left Rotech at a loss as to how it should proceed in the state of Utah. Currently, it is not activating these valves in Utah out of concern of getting another citation. Again these over-the-road relief valves were designed, by the manufacturer, specifically to be used to reduce the internal tank pressure while in transit. It seems clear that not having the release valve activated poses a greater danger to the public than merely releasing a non-poisonous, non-flammable gas into the atmosphere during transit. The UDOT officer and his superiors, however, do not agree, based on the fact that these valves are hand- activated. What they fail to realize is that the valves, even though they are hand-activated, have an incorporated automatic reseating relief valve that is used to maintain the internal pressure of the vessel below 25.3 psi while in transit. Mr. Clark mentioned that Rotech should request a "Written Interruption" from the United States Department of Transportation concerning this matter and forward it to the officer here in Utah responsible for the citation and the prosecutor responsible for this case. He noted that you would be the appropriate person to contact for this. Any assistance from you would be greatly appreciated. Rotech has a pre-trial conference on this matter on December 1, 2008. We are hopeful you can help us resolve this issue before then. Very truly yours, DURHAM JONES & PINEGAR, P.C. Michael F. Leavitt cc: David Clark (via email) Kim Lee (via email)#

Page 4- 4 . 4 r - c r - I - - /@ MODS I The MODS- I20.190 and 300 are Medical Oxygen Delivery Systems deslgned for economical transportation and delivery of liquid oxygen. Improved plurnblng design facilitates driver DOT compliance and efficiency of operations. The MODS provide consistent fan and efffclent reservoir fills, especially when used In conjunction with other Caire liquid system products. Whlle the MODS fast fill process makesit the perfect delivery tank for high denslty fill routes, its law evaporation rate makes It also Ideal for rural dimibuiion. Design allows fast filling from the bulk tank and into home reservoirs. Dual fill valves on the MODS allow one valve to be dedicated to the BulkTank and the other dedicated to the Home Delivery Unit Plumbing conveniently located for operator use. Oversize cryogenic valves prevent freed1 Low evaporation rate. Design for easy DOT compliance. Convenient truck mounting. MODS system has I " stainless steel pk ~mbl allowing this unit to fill all low pressure liqui required when using other systems. whfch utilizes the fast fill p roc( zdure !quipm tent In 114 to 112 of - the time#

Page 5Tag Definition C-1 Connection. Fill &Withdrawal C-1A Connection. Fill &Withdrawal C-2 Connection Vent Stack HCW-1 Valve, Fill & Withdmwal HCW-1A Valve, Fill &Withdrawal HCW-2 Valve, Pressure Build HCV-3 Valve. Vent HCV4 Valve, Full Tycock (kcll.7 Valve. Road ~elief) HCV-9 U-I. Equalization Valve 11-1 Level Indicator, Inner Vessel PBC-1 Pressure Build Coil PSE-1 Pressure Safety Element. INR PSV-1 Pressure Safety Valve, INR PSV-2 Pressure Safety Valve, Road PI-l Pressure Indicator Gauge UP-1 Vacuum Port PRODUCT SPECIFICATIONS Dimensions MODS-120 Oxygen Nitrogen 42"w x 45"h x 57"d -. - MODS-190 Oxygen Nitrogen 42"w x 45"h x 70"d MODS 300 Oxygen Nitrogen 42"w x 45"h x 100"d Weight 1100 lbs. Empty 1200 Ibs. Empty 1600 lbs. Empty 2100 Ibs. Full - 1800 Lbs Full 2900 U15. Full - 2400 Lbs Full .- 4400 Lbs Full - 3600 lbs Full I I Capacity (Net). 111 Gal 179 Gal 297 Gal Max. Working Pressure 100 psig 100 psiq 100 psig Evaporation Rate. . 1.6O0l0 02/Day - 2.6% NZ/Day 1.35% 02/0ay - 2.16% NZ/Day 0.70°/~02/day - 1.08O/oN2/Day 1 I Ordering Information Tank 11818705 11814721 11848234 I I Vent Kit 11864277 -- 11864277 11864277 Mount K i t 10591449 10591449 10591449 Service Kit 11830211 - 11830237 11830211 - 11830237 11830211 - 11830237 I I CAIRE INC. CHART BIOMEDICAL 1800 Sandy Plains Industrial Parkway, Suite 316 U n i t 2, Maxdata Centre Maiietta, GA 30066 Downmill Road, Brackrlell Ph/770-425-4470 Toll Freell-800-482-1473 {/ . Bcrks RG I 2 I QS, I-lnitcd Kingdom Fax/770-425-~40 (.: A I R E. I< Clch&...,l,.a.s., Ph/ +44(0) 1341 403100 wwv.cairemedical.com Fx/ +44(0) 1341 429224 B, 11U15 C-41RL. Inc. All riyhti rr.rrved. htadr on 1I.S.A. nmdtdct r~ccitintion ~ u b ~ c c ~ to chun~r without nutrcr. Printcd in U.S.A. Rcl 1OUDZ.liT) RN K#

Page 6OPERATING INSTRUCTIONS FOR ULTRA SERIES LIQUJD DELIVERY SYSTEM ODUCTION The container system consists of a stainless steel inner vessel safely supported within acarbn steel auter vessel. The inner cylinder is wrapped in a highly efficient insulation material and the annular space bctween the vessels is evacuated to provide vacuum insulation reducing heat trensfer and product evaporation. Loss of this vacuum will result in diminished insulation and loss of product. M A T Z U L HANDLING SAFE- Material Safetv Datasheets for the product to be stored in the vessel should be read and understood by aU personnel using the vessel for filling, storage, or discharge before operating the vessel. It is critical that all cautionsand warnings related to such product be strictly adhcred to and proper safety equipment should be used at all times. W M G Do not operate this vessel in a closed compartment or confined area unless the vent stack is ducted to the outside. Do not open the filllwithdrawal or the fbll trycock valve if in a confined area. The trycock should have an extension piped to it which directs gas andlor liquid outside the compartment and away from the operator. WMlWNG- All transfer lines used with this vessel should be equipped with a relief valve. WARMNG- Do not remove, disable, or otherwise i n k ~ e r e with the operation of any safety devices on this vessel. CHANGING S E R ~ The Ultraseries Delivery Vessels are suitable for carrying liquid oxygen, nitrogen or argon. However, if changing service, purge according to DOT regulations. Minor component changes may also be necessary. / ~ * . E - D E ~ ~ ~ ) I 1) Reliefvalve (RnThere is an automatically reseating relief valve protecting the inner vessel from over pressure. This valve is not to be set at a pressure exceeding the rated normal operating limit of the vtssel. 2) Pu~ture Disk (RDI Also referred to as a "head safetyw, this rupture disk is a backup safety device designed to protect the inner vessel from over pressure should the relief valve (BV) fail to open prior to pressure reaching the rupture disk set point. This is a "onetime" use device with a frangible membrane that must be replaced in the event of activation. The pressure rating of the head safety is not to exceed 1.5 times the normal operating limit of the vessel. I Road Relief Valve (RRVlThis device is designed to be opened in the event that the vessel is used for transporting cryogenic liquids. The Road Relief Valve is set at less than 25.3 psi and is an automatically reseating relief valve with operation similar to that of the &Lief Valve (RV). The valve to this device may be closed when the vehicle containing the vessel is stationary for the purpose of increasing overall pressure to off- load liquid. The Road Valve (V-7) must be open and pressure relieved to less than the set point any time tbe vehicle is in motion. 4) -Rupture Diskis "one-time" frangible disk device is affixed to the external vessel and it designed to provide free reIief of pressure in the event that Liquid or gas may be released into the annular space bchveen the inner and outer vessel. There is a common vent line connecting the Relief Valve (RV), Rupture Disk (RD), and Road Relief Valve (RRV). If the tank is installed in a closed container or vehicle, this line is to be piped directly to an external vent to assun gases do vent directly into the vehicle. NOTE- VK-IT Vent Kits are available from West Cryogenics, Inc.#

Page 7A pressure gauge is provided indicating the inner vessel pressure. There is also a liquid level gauge indicating the approximate level of liquid in the vessel. These are two isolation valves between vessel and these gauges allowing the gauges to he replaced without emptying the vessel. Both valves should be open during normal operation. The vessel is equipped with an external pressure building system to assist in liquid discharge. 'Ilk system consists of the Pressure Building Coil (PBC) and a Pressure Building Valve 01-1). When V-1 is opened, liquid is able to travel through the system. Tbe Relief Valve (RV) provides control to prevent pressure from exceed the operating limits of the vessel. If the Road Relief Valve (RRV) is left open then it wilI scrve as the primary regulator keeping pressure below 25.3 psi. Pnssure may also be rnanually relieved by opening the Vent Valve (V-2). To increase pressure, open the Pressure Building Valve ('4-1) and be sure the Vent (V-2) is closed. If pressure greater than 25.3 psi is requited the Road Valve (V-7) must also be closed. The Pressure Building Valve (V-1) should be closed anytime the vessel is not being used for discharge or is in transit. When discharge operation is complete, the Pressure Building Valve (V-I) should be closed and the Vent Valve (V-2) shouId be opened to manually relieve pressure to below 25psi prior to reopening the Road Valve (V-7). NOTE- Prior to filling, it is important to consuIt DOT regulations or your Iocal supplier for the maximum allowable liquid load consistent with your working pressure. The UltraSeries Delivery Vessels are fitted with two (2) Liquid Valves (V-4) as standard equipment. Both valves can be used for fill or discharge of cryogenic liquids as needed. These vessels can be filled from apressurized liquid source using the following procedure: 1) An extension should be in place on the full trycock (Fill) valve (V-3) to discharge out of the vehicle and away 2) from the operator. Connect the liquid source to the Fill/ Drain Valve 01-4) using a suitable transfer line. Be sure the Road Relief kolation Valve is closed. WAIWZNG- It is critical that all transfer lines connected to the vessel he fitted with a relief valve to prevent trapping of liquid or gas in the transfer line. Expanding gases from vaporizing liquid create rapid increases in pressure resdting in violent rupture of the transfer line. This rupture can lead to serious injury or death to individuals struck by the line or debris thrown @om the line. 3) 4) Open the FillDrain Valve (V-4) and the Full Trycock (Fill) Valve (V-3). To begin the transfer, open the liquid source valve. Pressure at the vessel may be relieved manually using the Vent Valve (V-2) by opening to reduce pressure or closing to increase pressure. WWWING- A cold stream of gas will exit fmm the full trycock extension. Keep clear of the exiting stream. 5) When the container is filIed, Liquid will start to exit from the Full Trycock (Fill) Valve (V-3) extension. At that point, shut off the liquid source valve. 6) Shut off the FillBrain Valve (V-4) and the Full Trycock (Fill) Valve (V-3). Open the Vent Valve (V-2) to relieve pressure from the vessel. 7) Disconnect the transfer line. 8) Open the Road Relief Valve (RRV) prior to transporting the filled vessel.#

Page 8The Ultraseries Delivery Vessels are fitted with two (2) Liquid Valves (V-4) as standard equipment. Both valves can be used for fill or discharge of cryogenic liquids as needed. I I Transferring Iiquid from the UftraSeries vessel is accomplished by the following procedure: 1) Be sure the Vent Valve (V-2) and Full Trycock (V-3) are closed 2) Check the pressure gauge to see that the vessel pressure is appropriate for the intended application. If additional pressurization is required, open the Pressure Building Valve (V-1) to operate the external pressure building coil. If less pressure is needed, open the Vent Valve (V-2) to lower pressure. 3) Attach a suitable transfer line to the FilVDmin Valve (V-4). WARNING- It is critical that a11 transfer lines connected to the vessel be fitted with a relief valve to prevent trapping of liquid or gas in the transfer line. Expanding gases from vaporizing liquid create rapid increases in pressure resulting in violent rupture of the transfer line. This rupture can lead to serious injury or death to individuals struck by the line or debris thrown from the line. 4) 5) 6) Open the Fill/ Drain Valve (V-4) as fare as necessary to obtain the desired flow rate. When the transfer is complete, close the Fill/Drain Valve w). WhiIe at the same location, the Pressure Building Valve (V-1) may be left open until fill operations are complete. To prevent excessive venting of gas, the Pressure Building Valve (V-1) should be closed prior to opening the Road Valve (V7) for transit. CAUTION- Before operating this vessel, please consult your supplier for the product MSDS and applicable "Precautions for the safe handling and storage of liquetied gases" for additional precautions and good practice regarding cryogenics. WC210/WC290 ULTRA FLOW SCHEMATIC PBC NOMENCLATURE ITEM OESCRlPTlON V1 fWSSURE BUILD VALVE V2 VENT VPAM VJ FULL TRYCDCK V4 FILL/DRAIN VALVE V5 LOV PRESSURE GAUGE VALVE V6 HIGH PRESSURE G A W VALVE - v7 RWD VALVE RR RDRD RELIEF PR PRItW7Y RELIEF RO RUPTUK DISC (MAIN SAFETY) VO VENT DUTLET FITTING - Ex-v4 rc LLG LIQUID LEVEL GAUGE V4 pt PRESSURE GAUGE FC VI FC FILL CONNLCTIIR PBC Py -#