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

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Ave, S.E. Washington, D.C. 20590 Mr. Timothy W. Wiseman Scopelitis, Garvin, Light, Hanson & Ferry Attorneys at Law 10 W. Market Street, Suite 1500 Indianapolis, Indiana 46204 Ref. No. 09-0068 Dear Mr. Wiseman: This responds to your March 1 1,2009 letter on behalf of CVS Transportation L.L.C. You request clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171 -1 80) as they apply to limited quantities and materials of trade. According to your letter, CVS Transportation L.L.C. is a licensed private and for-hire common and contract motor carrier providing transportation services through a network of dedicated distribution centers solely to CVS companies. Your letter includes a list of shipping descriptions for various photo development products that CVS Transportation, L.L.C. commonly transports from distribution centers to CVS store locations. The list includes Division 5.1 (Oxidizer), Class 8 (Corrosive), and Class 8/Division 6.1 (Corrosive/Poisonous) materials. The products are transported in inner packagings placed inside strong outer packagings, typically totes. Each inner packaging contains a maximum of 4 liters or 4 kilograms of material, and the capacity weight rating of the totes is 60 pounds. The products listed in your letter are used by CVS stores in direct support of their principal business of selling retail merchandise such as photos and photo developing services, and are not offered for retail sale to the public. Your questions are summarized and answered as follows: Q1. May the listed materials, packaged as described, be transported as "limited quantities" under the HMR? Al. Yes. The photo development materials listed in your letter may be shipped as "limited quantities" provided they are prepared and offered for transportation in accordance with all applicable limited quantity provisions. Note that you may utilize limited quantity exceptions only when the exception is authorized for the specific material by reference in Column 8A of the Hazardous Materials Table (HMT; § 172.101). 42. May CVS Transportation L.L.C. transport the listed materials in accordance with the materials of trade exception in § 173.6?#

Page 2A2. Yes. A "material of trade" is defined in 9 17 1.8 as a hazardous material, other than a hazardous waste, that is carried on a motor vehicle by a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle. A "private motor carrier" is a carrier that transports the business's own products and does not provide such transportation service to other businesses. The photo development materials may be transported as "materials of trade" in accordance with 173.6, provided the vehicle operates as a private motor carrier and the shipment otherwise conforms to the provisions of 173.6. I hope this information is helpful. If you have further questions, please do not hesitate to contact this Office. Sincerely, Charles E. Betts Development Materials Standards#

Page 3SCOPELITIS, GARVIN, LIGHT, HANSON & F E A R Y ~ 1-73. 1 5 2 AVORNEYS AT LAW INDIANAPOLIS CHICAGO . WASHINGTON, D.C. LOS ANGELES KANSAS CITY CHAlTANOOGA ' DETROIT 10 W. Market Street, Suite 1500 Indianapolis, Indiana 46204 phone (317) 637-1777 fax (317) 687-2414 www.scopelitis.com TIMOTHY W. WISEMAN twiseman@scopeIitis.com RICHARD A. CLARK rclark@scopelitis.com March 1 1, 2009 Mr. Edward T. Mazzullo, Director PHMSA Office of Hazardous Material Standards U. S. Department of Transportation Att: PHH-10 East Building 1200 New Jersey Avenue, SE Washington, DC 20590-000 1 Re: Request for Clarification on "Limited Quantity" and "Materials in Trade Exceptions to the Hazardous Material Regulations Dear Mr. Mazzullo: CVS Transportation, L.L.C. ("CVS") requests that the Pipeline Hazardous Material Safety Administration ("PHMSA") provide an interpretation, by letter, of the "limited quantities" exceptions to the packing anci labeling requirements for certain photo development materials, described in Attachment A to this letter, under 49 C.F.R. § 173.152(b)(2) and § 173.154(b)(2). In addition, CVS requests interpretation of the applicability of the exceptions to shipping paperwork requirements under the "Materials of Trade" exception in 49 C.F.R. 3 171.8. CVS is a licensed private and for-hire common and contract motor carrier. It provides transportation services through a network of dedicated distribution centers solely to CVS companies, including approximately 2,500 stores ("CVS Stores"). Larger quantities of retail and other goods are shipped to the distribution centers ("DC") where the quantities are broken down into smaller amounts needed by each individual CVS store. SERVICES OUTSIDE CALIFORNIA AND MICHIGAN PROVIDED BY SCOPELITIS. GARVIN, LIGHT, HANSON 8 FEARY, PROFESSIONAL CORPORATION SERVICES IN MICHIGAN PROVIDED BY SCOPELITIS, GARVIN, LIGHT, HANSON 8 FEARY, PROFESSIONAL UMITED LIABILITY COMPANY SERVICES IN CALIFORNIAPROVIDED BY SCOPELITIS, GARVIN. LIGHT, HANSON 8 FEARY, LIMITED LIABILITY PARTNERSHIP#

Page 4Page 2 March 1 1, 2009 CVS Stores offer "in-store" photo development services using small amounts of the various photo developing materials. CVS DCs receive photo developing materials in larger outer containers which have individual smaller containers. The individual containers of photo development materials transported to CVS Stores generally contain less than one liter or one kilogram of hazardous material and no individual containers transported in this way hold more than 4 liters or 4 kilograms of the material respectively. The individual containers of material are packed in a strong outer packaging in the form of plastic containers ("Totes") with sufficient dunnage around the individual containers to prevent them from moving. The Totes have lids which are closed after packing. The Totes have a capacity weight rating of 60 pounds and are rated to withstand up to 250 pounds stack capability and 320 pounds of static stack capability. We believe that the plastic Totes with interlocking lids meet the definition of "strong outside container" under the Regulations and qualify as a Category 2H2 Container under 5 178.518(b)(6). Existing inner containers of the photo developing materials meet the inner packaging requirements. Because no shipment of any individual container exceeds 4 liters or 4 kilograms maximum net capacity, CVS believes that the shipments of photo I developing materials in Attachment A which fall within Hazard Class/Division 5.1 would be exempt from any other packaging or labeling requirements as ; "limited quantities" under 49 C.F.R. 5 173.152(b)(2). Those photo developing materials falling within Hazard Class/Division 6.1 and 8 in the attached list could also be exempt from any labeling requirements or additional packaging requirements under 49 C.F.R. 5 173.154(b)(2). Also, because each of the photo developing materials are only used by CVS Stores in direct scppcrt of the principal business of CVS selling retail merchandise such as photos and photo developing services, and none are offered for retail sale to the public, CVS believes the shipments of photo developing materials qualify as "materials of trade" under 49 C.F.R. 5 171.8 and thus are also exempt from the shipping paperwork requirements under 49 C.F.R. 5 173.6(a)(l)(ii), as they are transported between DCs and CVS Stores. Based upon the facts described in this letter, CVS Transportation, L.L.C. requests an interpretation of the application of the "limited quantities" and "materials of trade" exceptions under the Hazardous Material Regulations to shipments of the materials in Totes from its DCs to its retail stores. SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY#

Page 5Page 3 March 11, 2009 If you have any questions concerning this request for interpretation, or need any additional information, please do not hesitate to contact the undersigned. Very truly yours, Timothy W. WIseman H: \Users\kchimento\ WPWIN| WPDOCS\RAC\CD|CVS Transportation\Mazzullo 2-20-09.doc RAC/kkc SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY#

Page 6cvs Group 1. 2a. 2c. Attachment A HAZARDOUS MATERIALS TO BE TRANSPORTED The following materials are used by CVS Stores for photo development services and are transported in small quantities from CVS Transportation's Distribution Centers to CVS retail stores. Hazard Proper Shipping Name Description I.D, Number Packing Group Division Oxidizing solid, n.0.s. (Dichloroisocyanuric Acid) Corrosive Liquid, Acidic, Inorganic, n.0.s. (Bis(Hydroxylammonium Sulfate) Corrosive liquid, acidic, organic, n.0.s. (Organic Amine Sulphate) Corrosive Liquid. Basic. Inorganic, n.0.s. Corrosive Liquid, n.0.s. (Ferric Ammonium) Kodak Ektacolor PC 1 11 5.1 Rinse TabletsIRA-4 Kodak Flexicolor Develower Replenisher LORR Part B, Kodak Flexicolor SM Tank i DeveloperIC-41 SM, Part B, Kodak Negative Film FC Tank Developer, Part B, Kodak Flexicolor Sl'vl Processing Unit FlIC41 SM, Part 4, Kodak Negative Film - UN1479 Ill Kodak Ektacolor SM Processing Unit PIIRA- 2SM, Part 0, Kodak Ektacolor SM Tank I DeveloperIRA-2SM, Part B ( 1 Kodak Flexicolor SM Tank / DeveloperIC-41 SM, Part A, Kodak Ektacolor SM Tank DevelowerIRA-2SM. Part C, 1 ! 1 Kodak ~ktacolor SM Processing unit 8 LIN3266 Ill2SM, Kodak Flexicolor SM Processing Unit F1 IC41 SM, Part 3, Kodak Rapid Developer ~ e ~ l e n i s h e r Kodak Flexicolor RA Bleach replenisher NR, Kodak Flexicolor SM Processing Unit F2lC-41 SM Version 2.1, Bleach, Kodak Flexicolor SM Tank Bleach1 C-41 SM, Working Solution, Kodak Negative Film FC Tank Bleach MX 1931, Kodak Negative Processing 1 Cartridge FCl , Part 2#

Page 7Group Proper Shipping Name Corrosive Liquid, n.0.s. (Potassium Carbonate) Corrosive Liquid, n.0.s. (P- Phenylenediamine Derivative) Corrosive Liquid, Toxic, n.0.s. (P- phenylenediamine derivative) Description Kodak Ektacolor PC 11 1 Tank Developer, Part A, Kodak Flexicolor Developer Replenisher LORR Part A, Kodak Negative Film FC Tank Developer, Part A Kodak Negative Film FC Tank Developer, Part C Kodak Flexicolor Developer Replenisher LORR Part C, Kodak Flexicolor SM Processing Unit FI/C41SM, Part 1, Kodak Flexicolor SM Tank DeveloperIC-41 SM, Part C 1 Hazard Class/ Division I.D. Number Packing Group 8#