{"operation":"document","citation":"09-0174","title":"Mr. Steven H. Wodka — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-12-22","effective_on":null,"summary":"09-0174 concerning 172.304, 172.401, 179.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0174.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0174.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0174","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090174.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department 1200 New Jersey Ave., SE\nof Transportation Washington, DC 20590\nPipeline and Hazardous Materials\nSafety Administration\nDEC 2 2 2009\nMr. Steven H. Wodka\nAttorney\n577 Little Silver Point Road\nP.O. Box 66\nLittle Silver, NJ 07739-0066\nRef. No.: 09-0174\nDear Mr. Wodka:\nThis responds to your July 29, 2009 letter requesting clarification of the tank car marking\nrequirements of the Hazardous Materials Regulations (HMR; 49 CPR Parts 171-180). You\nask whether our letter of clarification dated May 16, 2008 (Ref. No.: 08-0063) to Mr. Steven\nAmter remains valid.\nThe May 16, 2008 letter was revised and is now referenced as 08-0063R. Enclosed is a copy\nof the revised letter. I trust this satisfies your inquiry. Please contact us if we can be of\nfurther assistance.\ns~\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\nEnclosure\n\n<<<PAGE 2>>>\n\nu.s. Department 1200 New Jersey Ave .• SE\nofTransportation Washington. DC 20590\nPipeline and Hazardous Materials\nSafety Administration\nDecember 10, 2009\nMr. Steven Amter\nSenior Scientist\nDisposal Safety Incorporated\n1001 Connecticut Avenue, NW, Suite 525\nWashington, DC 20036\nReference No. 08-0063R\nDear Mr. Amter:\nThis letter clarifies my May 16, 2008 response and is in further reference to your\nMarch 7, 2008 letter and your March 14, 26, and April 8, 2008 telephone conversations with a\nmember of my staff concerning a tank car that contains ortho-Toluidine (o-Toluidine). You\nasked if a warning label or sign may be placed near the tank car's unloading outlet under the\nHazardous Materials Regulations (HMR), 49 CFR Parts 171-180). You stated the image of\nthe sign or label had not been determined, but would likely take the shape of a circle, square,\nor rectangle.\nOrtho-toluidine is listed as \"UN 1708, Toluidines, 6.1, PG II,\" in the Hazardous Materials\nTable, § 172.101 in the HMR. The material is also listed as o-Toluidine in Table 1 to\nAppendix A in § 172.101 and is regulated as a hazardous substance, as defined in § 171.8,\nwhen the quantity of 0-Toluidine in one package equals or exceeds its reportable quantity\n(RQ) value of 100 pounds. If the quantity of material being transported in one package meets\nor exceeds the RQ for o-Toluidine, the letters \"RQ\" must be included either before or after the\nbasic description on the shipping paper. When transported in a tank car, the tank must be\nmarked on each side and each end with the identification number \"1708\" in accordance with\n§§ 172.330(a)(1)(i) and 172.332.\nProvided the proposed sign or label by its color, design, shape, or content cannot be confused\nwith and does not conflict with a marking, label or placard prescribed in the HMR, the\nplacement of a label or sign near a tank car's unloading outlet is not prohibited under the DOT\nregulations. See the requirements in §§ 172.304( a)( 4), 172.401(b), and 172.502( a )(2). A sign\nor label on a tank car must also comply with the tank car marking requirements in Appendix\nC of the Association of American Railroads Specifications for Tank Cars, which the HMR\nincorporates by reference in § 171.7. See § 179.22(a). The purpose of this latter requirement\nis to ensure that all tank car markings, including those required under the HMR, are placed in\na location that is consistent with the markings on other tank cars. This consistency makes it\neasier for railroad and emergency response personnel to identify a tank car in transport.\n\n<<<PAGE 3>>>\n\nAlthough you submitted the proposed text of the label in your inquiry, this Office assessed the\ncontent of the label only to determine whether it would conflict with labeling requirements\nunder the HMR. Thus, our May 16, 2008 letter is in no wayan endorsement, ratification, or\nconfirmation of the truth of the statements on your label. Moreover, PHMSA does not have\nthe authority or the expertise to determine whether a material is a cancer-causing agent, and\nno such determination was intended by our letter.\nI hope this satisfies your request.\nS1~\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n2\n\n<<<PAGE 4>>>\n\n.\nNI~l<eJs\n9 J12 ·3(jcf\n~ r1'2· l..{O I\nSTEVEN H. WODKA. ~ 11 q · 1-.A(a)\nMember of Bar ATTORNEY AT LAW 1\\/1 ',I \"\"'<i I,. JA _ I Fax (732) 530·36Z7\nNew Jersey District of Columbia\n577 LITTLE SILVER POINT ROAD 1\\'\"la{~/t1:1 J.M~7@verizon.net\nP.O. BOX 66 Dq 0 I '7\nLITTLE SILVER, NEW JERSEY 07739-0066 (732)\n530-2815\nJuly 29,2009\nBY FEDEX\nMr. Edward T. Mazzullo, Director\nOffice of Hazardous Materials Standards\nU.S. DOT/PHMSA (PHH-1 0)\nEast Building, 2nd Floor\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe: PHMSA Interpretation #08-0063\nDear Mr. Mazzullo:\nI represent the United Steelworkers Local Union 277 which is the authorized employee\nrepresentative for the hourly workers at The Goodyear Tire & Rubber Company in\nNiagara Falls, New York.\nThe Goodyear plant in Niagara Falls is one of the largest users of the chemical product\northo-toluidine. The plant currently consumes more than 5,500,000 pounds of orthotoluidine\neach year, nearly all of which is shipped in a fleet of railroad tank cars by its\nmanufacturer, the First Chemical Corporation, a division of E.1. DuPont de Nemours &\nCompany, in Pascagoula, Mississippi.\nOrtho-toluidine has been categorized by the International Agency for Research on\nCancer (IARC) as a Group 1 agent which is carcinogenic to humans. In a study\npublished in 1991 in the Journal of the National Cancer Institute, researchers from the\nNational Institute for Occupational Safety and Health (NIOSH) reported that the\nincidence of bladder cancer at the Goodyear plant was more than three times the\nexpected rate. NIOSH reported that the likely cause of the excess bladder cancer risk\nwas due to occupational exposure to ortho-toluidine. Among workers who were\nassigned for over ten years to the department where ortho-toluidine was used, their risk\nof bladder cancer was 27 times the expected rate.\nOn May 16, 2008, your agency issued PHMSA Interpretation #08-0063 (attached) in\nresponse to an inquiry as to whether a tank car warning label, which clearly and\nprominently warned of the carcinogenic hazard of ortho-toluidine, and which provided\nimportant instructions for its safe handling, would conflict with any DOT regulation or\nstandard. My client was pleased to see Ms. Mitchell's response, on behalf of the\nagency that, provided that the proposed warning label did not intetiere with the other\n\n<<<PAGE 5>>>\n\n-2required\ntank car markings, such a label could be placed near a tank car's unloading\noutlet.\nHowever, at some point subsequent to May 16, 2008, without any notice, this PHMSA\nresponse letter was removed from the public side of the PHMSA interpretations\nwebsite. On July 24, 2009, I spoke with \"Jackie\" of your office who advised that the\nresponse letter is still listed on the \"internal\" agency side of the website and that there is\nno indication that the response letter has been cancelled.\nMy client is greatly about the circumstances of the withdrawal of this interpretation from\nthe public side of the website. At a recent deposition, attorneys for DuPont, the\nmanufacturer of the ortho-toluidine, implied that the response letter is no longer valid.\nDuPont denies that ortho-toluidine can cause bladder cancer in human beings. DuPont\nalso refuses to place a cancer warning on the exterior of their ortho-toluidine tank cars.\nAccordingly, we request that the agency advise us as to:\n1. Whether PHMSA Interpretation #08-0063 is still valid?\n2. If PHMSA Interpretation #08-0063 is valid, when will it be restored to the public\nside of the agency's website?\n3. If PHMSA Interpretation #08-0063 is no longer valid, what are the grounds, if\nany, for the agency's decision?\nIf you have any questions, please let me know. We would appreciate receiving your\nresponse as soon as possible.\nSincerely yours,\n~~\nSteven H. Wodka\nAttorney for USW Local 277\nenc.\ncc: Robert Dutton, President USW Local 277","truncated":false,"body_characters":8016}