{"operation":"document","citation":"10-0106","title":"Law Offices of Charles T. Simmons, LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-09-08","effective_on":null,"summary":"10-0106 response to Law Offices of Charles T. Simmons, LLC concerning 173.401.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0106.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0106.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0106","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100106.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation\nPipeline and Hazardous Materials\nSafety Administration\nSEP 8 2010 1200 New Jersey Ave. SF:\nWashington. D.C. 20590\nMr. Charles T. Simmons\nLaw Offices of Charles T. Simmons, LLC\n1250 Connecticut Avenue, N.W.,\nSuite 200\nWashington, D.C. 20036\nRef. No. 10-0106\nDear Mr. Simmons:\nThis responds to your May 5,2010 letter requesting that the Pipeline and Hazardous Materials\nSafety Administration (PHMSA) re-visit its response to your original request for interpretation of\nthe Hazardous Materials Regulations (49 CFR Parts 171-180). The response to your original\nrequest was issued June 26, 2006 [Ref. No. 06-0003; Attached] and signed by Hattie L. Mitchell,\nChief, Regulatory Review and Reinvention, Office ofHazardous Materials Standards. In that\noriginal request, you asked PHMSA ifthe exception in § 173.401 (b)( 4), which provides\nregulatory relief from the Class 7 (radioactive) material regulations for natural material and ores\ncontaining naturally occurring radionuc1ides, applies to zeolite media used as part of a water\ntreatment process to remove radionuc1ides from drinking water. PHMSA responded stating the\nexception does not apply to the contaminated zeolite. You assert that the letter issued on June 26,\n2006 [Ref. No. 06-0003] is in conflict with other more recent letters issued by PHMSA on the\napplicability of § 173.401 (b)( 4). Thus, you are asking PHMSA to reconsider the response to\nthat June 26, 2006 letter.\nPHMSA disagrees with your assertion that the June 26,2006 [Ref. No. 06-0003] letter conflicts\nwith other more recent letters of interpretation that have been issued on the applicability of the\nexception in § 173.401 (b)( 4). Each ofthe more recent letters that you reference concern ores or\nmaterials remaining from the processing ofores. As your request does not involve \"natural\nmaterial\" (due to the man-made processing involved) or \"ores containing naturally occurring\nradionuclides\" our previous response to you is not inconsistent with the other letters you\nreference. Therefore, PHMSA is not revising the letter of interpretation that was issued to you\non June 26, 2006.\nI hope this answers your inquiry. If you need further assistance, please contact this Office.\nhief, Standards Development\no ce of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nLAW OFFICES OF CHARLES \"1'. SIMMONS, LLC\nATIORNEY AT LAW\nLchtnlcwlJ\n~ 113. rfVI (h)~)\n-gAiv1\n10- 010&\n1250 CONNECTlCur AVe:NUE, NW\nSUITE 200\nWASHINGTON, D.C. 20036\nDlRECf (202) 26 1-6542\nfAX (202) 26 1-.3508\nMOBILE (202) 66!d-897 1\nE-MAIL csimmons@csimmonslaw.com\nMay 5, 2010\nOffice ofHazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nAttn: PHH-10\nU.S. Department of Transportation\nEast Building\n1200 New Jersey Avenue, S.B.\nWashington, D.C. 20590-0001\nRe: Request for Revised Interpretation of 49 CFR 173.401(b)(4)\nTo Whom It May Concern:\nIn a letter to the undersigned dated June 26, 2006 [Ref. No. 06-0003, hereafter \"Simmons\nletter\"], the Pipeline and Hazardous Materials Safety Administration (PHMSA) concluded that\nthe exclusion from the scope ofregulatiun sel forth in 49 CFR 173.401(b)(4) was inapplicable to\nnatural zeolite drinking water treatment media containing naturally occurring radionuclides.\nThis letter requests PHMSA to re-visit its conclusion in the Simmons letter and revise it to be\nconsistent with conflicting, and more recent, interpretations by PHMSA of 173 AO1 (b)( 4) that are\nmore aligned with the International Atomic Energy Agency (IAEA) Regulations for the Safe\nTransport ofRadioactive Material No. TS-R-J (2009) and associated IAEA guidance.\n1. The Simmons Letter\nIn the Simmons letter, PHMSA interpreted the applicability of49 CFR 173A04(b)(4) to drinking\nwater treatment media containing naturally occurring radionuclides as follows:\n\n<<<PAGE 3>>>\n\nQl. Does the exception for \"natural materials\" in § 173.401(b)(4) include naturally\noccurring zeolite water treatment medium that have absorbed naturally oecurring\nradionuclides from public drinking water supplies and are intended to be managed as\nwaste?\nAI. The answer is no. The term \"natural materials\" in § I 73.401 (b)(4) meam: materials\nand radionuclides existing in nature, not those produced by humans. Radionuclides\naddressed by § 173.401(b)(4) do not include those contained in filters use:d in\nremoval ofradio nuclides from drinking water, produced in nuclear reactors, or by\nother technological means. In the scenario described in your letter, the naturally\noccurring radionuclides in public drinking water supplies are absorbed onto zeolite\nmedium through a water treatment prOCei..1~' Therefore, these radionuclides, while\nnaturally occurring in the pre-treatment drinking water, are not naturally occurring in\nthe zeolite medium since they are transferred from another medium (i.e., the water).\nIf the zeolite medium contains naturally occurring radionuclides prior to its use as a\nfiltering medium, the exception in § 173.401(b)(4) is applicable. Howevt:r, after the\ndrinking water is processed through the zeolite medium and additional radionuclides\nare absorbed, § 173.401 (b)(4) does not apply.\nPHMSA's conclusion is apparently based on a beliefthat transferring naturally occurring\nradionuclides from a medium where they are found in nature to another natural medium where\nthey are not causes the radionuclides to lose their \"naturalness\" and become equivalent to\nradionuclides \"produced in nuclear reactors or by other technological means.\" This belief\nconflicts with interpretations by PHMSA discussed below which conclude that primordial\nradionuclides are covered by 173.401(b)(4) following transfer to different materials. Moreover,\nestablished science and the IABA recognize that primordial radionuclides and their progeny\nremain \"natural,\" even after processing (provided such processing is not intended to extract\nradionuclides for use oftheir radioactive properties).\nCentral to the act ofprocessing material containing natural radionuclides, whether by chemical\nor physical treatment, including filtration, is an intention to transfer or partition the material into\ndesired and unwanted fractions. Radionuclides are not created by such processing, just\ntransferred from one fraction to the other. As long as the underlying intention is not to extract\nnatural radionuclides for use oftheir radioactive properties (as in nuclear fuel), IAEA recognizes\nthat processing per se does not render naturally occurring radioactive materials within the scope\nofregulation.\n2. The Lambert Letter\nAn interpretive letter dated January 15, 2008 to Michael Lambert [Ref. No. 07-0218, hereafter\n\"Lambert letter\"] addressed the applicability of 173.401(b)(4) to shipments ofsoil contaminated\nby natural uranium removed from a molybdenum ore processing facility that was licensed by the\nU.S. Nuclear Regulatory Commission. (NRC). The request for interpretation stated \"It is not\nknown whether the natural uranium contamination in soil is the result ofthe presence of ore\n2\n\n<<<PAGE 4>>>\n\nbrought onto the project site over the many years of operation or residual material resulting from\nprocessing ore of a presently unknown origin.\" Natural uranium contamination in soil was\nreported to be less than ten times the activity concentration for exempt material in 49 CFR\n173.436 and the soil was being transported for laboratory analysis. PHMSA responded:\nQ1. May the samples of material that are to be shipped for additional characterization\nbe offered for transportation and transported under the exception in 173.40 I (b)(4)\nfor natural materials and ores?\nAI. Yes. Section 173.40 I (b)( 4) provides an exception for natural material and ores\ncontaining naturally occurring radionuclides which are not intended to be\nprocessed for use of these radionuclides, provided the activity concentration of the\nmaterial does not exceed 10 times the values specified in §173 .436. Since the\npreliminary characterization of your material shows that the known concentration\nof the natural uranium is slightly less than 10 times the exempt concentration limit,\nand because the sample of material is being transported for purposes other than the\nextraction ofradio nuclides, the exception in §173.401 (b)(4) may be used.\nNatural uranium was not originally present at high levels in the contaminated soil to be\ntransported, but was transferred to the soil by technological activity involving ore handling\nand/or processing to recover molybdenum. Unprocessed molybdenum ore contained natural\nuranium; ore spillage or the release of uranium-contaminated residues arising from ore\nprocessing activities caused soil to become contaminated with elevated concentrations ofnatural\nuranium. PHMSA's conclusion in the Lambert letter contradicts the Simmons letter: both\nsituations involve the transfer ofnaturally occurring radionuclides from a medium where they\noccur in nature to another natural medium where they do not; and, in both cases, the intended\nobjective was processing a natural material molybdenum ore in Lambert and ground water in\nSimmons- to obtain a purified product - molybdenum and drinking water meeting EPA\nstandards. In neither case was processing carried out for the use ofthe radionuclides.\n3. The Colborn Letter\nAn interpretative letter dated July I, 2005 to Kurt Colborn [Ref. No. 05-0145, the \"Colborn\nletter\"] addressed the applicability of49 CFR 173.401(b)(4) to natural uranium and thorium in\n\"material\" to be transported from a defunct tungsten processing facility ''which represent the\nresidual radioactivity remaining after the tungsten extraction process\" and was being\n\"transported for disposal and will not be processed for use ofthe radionuclides.\"\nThe exact nature ofthe \"material\" described by Mr. Colborn isn't clear -just that it is matter\ncontaining \"contamination from naturally occurring radionuclides,\" and it is \"being shipped as\n3\n\n<<<PAGE 5>>>\n\nwaste for disposal.\" PHMSA responded:\nIn order to determine whether the material to be shipped satisfies the conditions in §\n173.401(b)( 4) to be exempt from Class 7 transport requirements, one must compare the\nactual activity concentration ofthe material (defined as the sum of the activity\nconcentrations ofthe parents, i.e., ofU238\n, Th232\n, and K40 in your case) with 10 times the\ncalculated activity concentration limit for the mixture.\nHere, PHMSA did not qualify the applicability of 173.40 I (b)( 4) on whether natural\nradionuc1ides were intrinsic or extrinsic (i.e., transferred to) the material in issue. Instead,\nPHMSA considered only the identity and concentration ofthe natural radio nuclides in issue, all\nofwhich were primordial and below 10 times the exempt activity concentrations in 173.436.\nPHMSA's interpretation in Colborn is consistent with Lambert, which are both in conflict with\nthe Simmons letter.\n4. lAEA TS-R-l (2009) and lAEA Guidance support revising the Simmons letter.\nThe IAEA Regulations for the Safe Transport ofRadioactive Material TS-R-1 (1996) forms the\nunderpinning ofDOT's regulations governing transportation ofradioactive materials.l RSPA's\n(PHMSA's predecessor agency's) stated purpose for modeling U.S. rules on IAEA's was ''to\nharmonize requirements ofthe [hazardous materials regulations] with international standards for\nradioactive materials.,,2 IAEA reviews its transportation regulations on a two year cycle in order\n\"to reflect new information and accumulated experience.\" 3\nIn the 2009 edition ofTS-R-l, the lAEA provided a more expansive description ofmaterials\noutside the scope ofregulation, and emphasized the exclusion from regulation of\"processed\"\nmaterials as long as the materials were not intended to be further processed for use ofthe\nradio nuclides:\n107.These Regulations do not apply to:\n(e) Natural material and ores containing naturally occurring radionuclides which are\neither in their natural state, or have only been processed for purposes other than for\nextraction ofthe radionuclides, and which are not intended to be processed for use of\nthese radionuclides, provided the activity concentration ofthe material does not exceed\n10 times the values specified in Table 2, or calculated in accordance with paras 403--407\n1 67 Fed. Reg. 21328 (April 30, 2002).\n2 Id.\n372 Fed. Reg. 65470 (November 21,2007).\n4\n\n<<<PAGE 6>>>\n\nWhile the 2009 edition ofTS-R-l may not control PHMSA's interpretation of its own rules, it is\npersuasive that international authorities in their accumulated experience consider \"processing\"\nmaterials containing natural radionuclides not to be dispositive of their excluded status, provided\nthe materials are not intended to be further processed \"in order to use their radioactive\nproperties.,,4\nAll of the situations described in the Simmons, Lambert and Colborn letters involved natural\nmaterials containing naturally occurring radionuc1ides that were processed for purposes other\nthan use ofthe radionuc1ides. All situations involved the presence ofnatural radionuc1ides in a\nnatural material that had to be transported to a place for permanent disposal. Accordingly, the\nexclusion of49 CFR 173.401(b)(4) should apply equally in all situations.\n6. Question for Reconsideration\nIn light of the foregoing discussion, it is respectfully requested that PHMSA reconsider\ninterpretation in the Simmons letter in its response to the following question:\nQuestion: May natural zeolites that have been used for water treatment and as a result of such\nuse contain naturally occurring radionuclides be transported for disposal under the exception in\n49 CFR 173.401(b)(4) for natural materials and ores?\nPlease feel free to contact the undersigned if you have any questions regarding this letter.\nRespectfully submitted,\nCharles T. Simmons\n4 IAEA Advisory Material for the IAEA Regulations for the Safe Transport ofRadioactive Material, TS-G-l.l\n(2008) at para. 107.4.\n5","truncated":false,"body_characters":13879}