# Mr. Steven H. Wodka — Hazardous Materials Safety Interpretation

- **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:** Not available
- **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:**

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U.S. Department 1200 New Jersey Ave., SE
of Transportation Washington, DC 20590
Pipeline and Hazardous Materials
Safety Administration
DEC 2 2 2009
Mr. Steven H. Wodka
Attorney
577 Little Silver Point Road
P.O. Box 66
Little Silver, NJ 07739-0066
Ref. No.: 09-0174
Dear Mr. Wodka:
This responds to your July 29, 2009 letter requesting clarification of the tank car marking
requirements of the Hazardous Materials Regulations (HMR; 49 CPR Parts 171-180). You
ask whether our letter of clarification dated May 16, 2008 (Ref. No.: 08-0063) to Mr. Steven
Amter remains valid.
The May 16, 2008 letter was revised and is now referenced as 08-0063R. Enclosed is a copy
of the revised letter. I trust this satisfies your inquiry. Please contact us if we can be of
further assistance.
s~
Hattie L. Mitchell
Chief, Regulatory Review and Reinvention
Office of Hazardous Materials Standards
Enclosure

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u.s. Department 1200 New Jersey Ave .• SE
ofTransportation Washington. DC 20590
Pipeline and Hazardous Materials
Safety Administration
December 10, 2009
Mr. Steven Amter
Senior Scientist
Disposal Safety Incorporated
1001 Connecticut Avenue, NW, Suite 525
Washington, DC 20036
Reference No. 08-0063R
Dear Mr. Amter:
This letter clarifies my May 16, 2008 response and is in further reference to your
March 7, 2008 letter and your March 14, 26, and April 8, 2008 telephone conversations with a
member of my staff concerning a tank car that contains ortho-Toluidine (o-Toluidine). You
asked if a warning label or sign may be placed near the tank car's unloading outlet under the
Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180). You stated the image of
the sign or label had not been determined, but would likely take the shape of a circle, square,
or rectangle.
Ortho-toluidine is listed as "UN 1708, Toluidines, 6.1, PG II," in the Hazardous Materials
Table, § 172.101 in the HMR. The material is also listed as o-Toluidine in Table 1 to
Appendix A in § 172.101 and is regulated as a hazardous substance, as defined in § 171.8,
when the quantity of 0-Toluidine in one package equals or exceeds its reportable quantity
(RQ) value of 100 pounds. If the quantity of material being transported in one package meets
or exceeds the RQ for o-Toluidine, the letters "RQ" must be included either before or after the
basic description on the shipping paper. When transported in a tank car, the tank must be
marked on each side and each end with the identification number "1708" in accordance with
§§ 172.330(a)(1)(i) and 172.332.
Provided the proposed sign or label by its color, design, shape, or content cannot be confused
with and does not conflict with a marking, label or placard prescribed in the HMR, the
placement of a label or sign near a tank car's unloading outlet is not prohibited under the DOT
regulations. See the requirements in §§ 172.304( a)( 4), 172.401(b), and 172.502( a )(2). A sign
or label on a tank car must also comply with the tank car marking requirements in Appendix
C of the Association of American Railroads Specifications for Tank Cars, which the HMR
incorporates by reference in § 171.7. See § 179.22(a). The purpose of this latter requirement
is to ensure that all tank car markings, including those required under the HMR, are placed in
a location that is consistent with the markings on other tank cars. This consistency makes it
easier for railroad and emergency response personnel to identify a tank car in transport.

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Although you submitted the proposed text of the label in your inquiry, this Office assessed the
content of the label only to determine whether it would conflict with labeling requirements
under the HMR. Thus, our May 16, 2008 letter is in no wayan endorsement, ratification, or
confirmation of the truth of the statements on your label. Moreover, PHMSA does not have
the authority or the expertise to determine whether a material is a cancer-causing agent, and
no such determination was intended by our letter.
I hope this satisfies your request.
S1~
Hattie L. Mitchell
Chief, Regulatory Review and Reinvention
Office of Hazardous Materials Standards
2

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.
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STEVEN H. WODKA. ~ 11 q · 1-.A(a)
Member of Bar ATTORNEY AT LAW 1\/1 ',I ""'<i I,. JA _ I Fax (732) 530·36Z7
New Jersey District of Columbia
577 LITTLE SILVER POINT ROAD 1\'"la{~/t1:1 J.M~7@verizon.net
P.O. BOX 66 Dq 0 I '7
LITTLE SILVER, NEW JERSEY 07739-0066 (732)
530-2815
July 29,2009
BY FEDEX
Mr. Edward T. Mazzullo, Director
Office of Hazardous Materials Standards
U.S. DOT/PHMSA (PHH-1 0)
East Building, 2nd Floor
1200 New Jersey Avenue, SE
Washington, DC 20590-0001
Re: PHMSA Interpretation #08-0063
Dear Mr. Mazzullo:
I represent the United Steelworkers Local Union 277 which is the authorized employee
representative for the hourly workers at The Goodyear Tire & Rubber Company in
Niagara Falls, New York.
The Goodyear plant in Niagara Falls is one of the largest users of the chemical product
ortho-toluidine. The plant currently consumes more than 5,500,000 pounds of orthotoluidine
each year, nearly all of which is shipped in a fleet of railroad tank cars by its
manufacturer, the First Chemical Corporation, a division of E.1. DuPont de Nemours &
Company, in Pascagoula, Mississippi.
Ortho-toluidine has been categorized by the International Agency for Research on
Cancer (IARC) as a Group 1 agent which is carcinogenic to humans. In a study
published in 1991 in the Journal of the National Cancer Institute, researchers from the
National Institute for Occupational Safety and Health (NIOSH) reported that the
incidence of bladder cancer at the Goodyear plant was more than three times the
expected rate. NIOSH reported that the likely cause of the excess bladder cancer risk
was due to occupational exposure to ortho-toluidine. Among workers who were
assigned for over ten years to the department where ortho-toluidine was used, their risk
of bladder cancer was 27 times the expected rate.
On May 16, 2008, your agency issued PHMSA Interpretation #08-0063 (attached) in
response to an inquiry as to whether a tank car warning label, which clearly and
prominently warned of the carcinogenic hazard of ortho-toluidine, and which provided
important instructions for its safe handling, would conflict with any DOT regulation or
standard. My client was pleased to see Ms. Mitchell's response, on behalf of the
agency that, provided that the proposed warning label did not intetiere with the other

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-2required
tank car markings, such a label could be placed near a tank car's unloading
outlet.
However, at some point subsequent to May 16, 2008, without any notice, this PHMSA
response letter was removed from the public side of the PHMSA interpretations
website. On July 24, 2009, I spoke with "Jackie" of your office who advised that the
response letter is still listed on the "internal" agency side of the website and that there is
no indication that the response letter has been cancelled.
My client is greatly about the circumstances of the withdrawal of this interpretation from
the public side of the website. At a recent deposition, attorneys for DuPont, the
manufacturer of the ortho-toluidine, implied that the response letter is no longer valid.
DuPont denies that ortho-toluidine can cause bladder cancer in human beings. DuPont
also refuses to place a cancer warning on the exterior of their ortho-toluidine tank cars.
Accordingly, we request that the agency advise us as to:
1. Whether PHMSA Interpretation #08-0063 is still valid?
2. If PHMSA Interpretation #08-0063 is valid, when will it be restored to the public
side of the agency's website?
3. If PHMSA Interpretation #08-0063 is no longer valid, what are the grounds, if
any, for the agency's decision?
If you have any questions, please let me know. We would appreciate receiving your
response as soon as possible.
Sincerely yours,
~~
Steven H. Wodka
Attorney for USW Local 277
enc.
cc: Robert Dutton, President USW Local 277
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