{"operation":"document","citation":"11-0003","title":"S.E. McDonough & Associates, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-04-12","effective_on":null,"summary":"11-0003 response to S.E. McDonough & Associates, Inc. concerning 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0003","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110003.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nAPR 1 2 2012\nMs. Susan E. McDonough\nPresident\nS.E. McDonough & Associates, Inc.\n4921 Southfork Drive Suite 1\nLakeland, FL 33813\nRef. No. 11-0003\nDear Ms. McDonough:\nThis responds to your letter requesting clarification of the Hazardous Materials Regulations\n(HMR; 49 CFR Parts 171-180) applicable to the classification of a sample material with an\nunknown or suspected hazard. In your letter, you state that your consulting firm is willing to\nprovide regulatory guidance (and possibly more) to clients who intend to offer for\ntransportation dust samples to determine if they meet U.S. Environmental Protection Agency\n(EPA) or the National Fire Protection Association (NFPA) standards for combustible or\nexplosive dust. You ask how the HMR apply to such a material being transported to a\nlaboratory for testing and analysis. I apologize for the delay in responding and any\ninconvenience it may have caused. Your questions are paraphrased and answered as\nfollows:\nQl. What HMR requirements are applicable, if any, to our client's dust samples?\nAl. Section 172.10l(c)(ll), states that except for certain materials (e.g., a flammable solid\nas defined by the HMR), a shipper may assign a tentative shipping name, hazard\nclass, and identification number to a material based on the shipper's knowledge of\nthe material, the hazard precedence prescribed in§ 173.2a, and defining hazard class\ncriteria in Subchapter C. In this context, \"tentative\" means a temporary selection of a\nproper shipping name and hazard class used for a material until a more definite\nproper shipping name and hazard class can be assigned based on test data and\nanalysis. With samples, exact physical and chemical properties of many materials\nmay be unknown because concentrations of the components may vary from one\nshipment to the next. Therefore, the use of a tentative classification and proper\nshipping name is authorized. However, should a shipper obtain more specific data\non the properties of the material, the hazard class and proper shipping name must be\nmodified, as applicable.\nQ2. Is it appropriate to assume the dust is \"combustible\" or \"explosible\" for HMR\npurposes?\n\n<<<PAGE 2>>>\n\nA2. Q3. A3. Q4. A4. Q5. AS. Q6. For purposes of the HMR, the term \"explosible\" is not used or defined. An\nexplosive, as defined in§ 173.50(a), means any substance or article, including a\ndevice, which is designed to function by explosion (i.e., an extremely rapid release of\ngas and heat) or which, by chemical reaction within itself, is able to function in a\nsimilar manner even if not designed to function by explosion, unless the substance or\narticle is otherwise classed under the provisions of the HMR. Further, as specified in\n§ 173.21(h), packages containing materials (other than those properly classed as an\nexplosive) which will detonate in a fire are forbidden in transportation in commerce.\nFor purposes of the HMR, a readily combustible solid is one that meets the criteria\nspecified in § 173.124(a)(3) when tested in accordance with the United Nations (UN)\nManual of Tests and Criteria. The use of a tentative classification and proper\nshipping name is authorized for a packaged sample as specified in response A1\nabove.\nWhat if we or our clients suspect that a dust sample does not meet any hazard class\nas defined by the HMR but elect to have it tested anyway for Occupational Safety\nand Health Administration (OSHA) compliance?\nIf you can ascertain without testing that a sample does not meet any hazard class as\ndefined by the HMR, the sample is not subject to the HMR. Otherwise, a tentative\nclassification must be issued in accordance with response A1 above.\nIs there an \"exempt quantity\" that would exempt our clients from labeling the\npackage or providing shipping papers when offered for transportation by highway or\nrail?\nYes. For example, exceptions from the labeling and shipping paper requirements for\nlimited quantities of Divisions 4.1 and 4.3 materials in Packing Groups II and Ill\nwhen offered for transportation by highway or rail are prescribed in§ 173.151.\nDo our clients require training as prescribed in § 172.704 of the HMR?\nYes, if they are performing any regulated function (e.g., signing a shipping paper)\nsubject to the requirements of the HMR.\nIf I am trained as required by the HMR, may I guide my clients through the shipping\nprocess without them being trained as well?\nA6. No. See response A5 above.\nQ7. I have tentatively selected \"Metal powders, flammable, n.o.s. (Sample)'' and\n\"Flammable solid, inorganic, n.o.s. (Sample)\" as proper shipping names for my\nclient's dust samples. Is this correct?\n2\n\n<<<PAGE 3>>>\n\nA7. Under§ 173.22 of the HMR, it is the shipper's responsibility to select the most\nappropriate description for a hazardous material based on its knowledge of the\nmaterial. This Office does not normally perform that function. However, your\nselection appears appropriate based on the limited amount of information received\nwith your inquiry.\nQ8. We assigned Packing Group II to a dust sample package. Should we have selected\nPacking Group III instead?\nA8. Not necessarily. See response A7 above.\nQ9. Some of our clients are aware of the specific constituents that make up their dust\nsamples (e.g., zinc dust, titanium). Should we recommend they use proper shipping\nnames specifically listed in the § 172.101 Hazardous Materials Table (HMT) for\ntheir samples or should they use the generic descriptions instead?\nA9. Unless specified otherwise in§ 172.101(c)(12), a generic description should only be\nselected if the specific technical name for the substance or article is not listed in the\nHMT.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n3\n\n<<<PAGE 4>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom: INFOCNTR (PHMSA)\nSent:\nTo:\nSubject: Thursday, December 16, 2010 3:18PM\nDrakeford, Carolyn (PHMSA)\nFW: Hazmat Information Center Feedback: Other Questions?\nHi Carolyn,\nSusan E. McDonough requested we forward this e-mail as a request for a formal letter of\ninterpretation. She also requested we inform the person writing the letter that this is a\ntime-sensitive issue.\nThanks,\nVictoria Lehman\n202-366-1035\n-----Original Message-----\nFrom: PHMSA-Feedback [mailto:PHMSA-Feedback]\nSent: Wednesday, December 15, 2010 4:27 PM\nTo: PHMSA HM InfoCenterj PHMSA Webmaster\nSubject: Hazmat Information Center Feedback: Other Questions?\nTo whom it may concern,\nWe are an Environmental Health and Safety Regulatory Compliance Consulting Firm. We have been\nproviding DOT hazmat training for generators of hazardous and radioactive waste and hazardous\nmaterial shippers for over 25 years with no problems. We want to offer clients a new service\nof providing laboratory sample collection kits, where we would supply all equipment and\ndocumentation to the client for the client to collect the samples and ship them to a\nlaboratory for testing to determine if the material meets OSHA and NFPA standards of\n\"combustible\" and \"explosible\" dust. Most of the samples of the same material do not meet the\nOSHA or EPA definition of \"flammable\" by the closed cup flash-point method, but some do and\nsome may have never been analyzed for flash point. It is unlikely the particle size is known\nor the true composition of the samples, only that the dust is collected by a dust collection\nsystem. Some samples will turn out to be non-combustible and therefore, not explosible. Some\nof the client samples may be combustible but not explosible and some clients will have\nsamples that are both combustible and explosible. I want to pre-prepare all the appropriate\nshipping lables and paper work to ensure that what the client is shipping complies with DOT\nregulations. We plan to supply a combination package along with packing material to secure\nthe sample container in the box. We would also supply shipping documents and lables with the\nkits. I had planned on limiting the quantity they ship to less than 5 pounds and having them\nplace a Hazard Class 4.1 !able on the outside of the cardboard box. On the shipping papers I\nplanned to use: Metal Powders, Flammable, n.o.s.(Sample) UN3089 PGIII or Flammable solid,\ninorganic, n.o.s.(sample) UN3178 PG II as the proper shipping name and shipping by ground\nonly.\nQuestions:\n1. Do DOT Regulations apply to my situation?\n2. Must I assume the material is combustible or explosible if we don't know?\n3. What if we or the client suspect the material is not combustible but want to have the\nlaboratory analysis result on hand in the event of an OSHA inspection?\n4. What if they have had fires in their equipment that generate the dust, but no explosions?\n1\n\n<<<PAGE 5>>>\n\n5. Is there an \"exempt quantity\" which would exempt them from having to !able the package or\ncomplete dangerous goods shipping documentation?\n6.Do we really have to do all this with regards to shipping papers and container labeling for\na sample of material we are sending out to determine if it is a combustible or explosible\ndust hazard?\n7. Do the people packaging the sample for shipment ( We will have already insured the correct\npackaging and package !able has been provided as well as completed all paperwork except the\nshippers signature.) to a laboratory for analysis to determine if it is combustible or\nexplosible need to have DOT HazMat Shipper Training?\n8. What about if I have them return the package to me and I ship the package to the\nlaboratory?\n9. Can I as a trained HazMat shipper guide them through the process and have them ship the\nsample to the lab direct?\n10.If it turns out they do need to comply with DOT requirements for shipping HazMat, have I\nselected the correct proper shipping name?\n11. With regards to the Flammable Solids n.o.s., Have I chosen the correct packaging group or\nshould we use PGIII instead of PG II?\n12. With regards to those clients that know their material contains Aluminum magnesium,\nTitanium, or Zinc dust along with steel shot dust, need to use the proper shipping names\nlisted for those metals, i.e. UN1396 and so on?\nOur clients have an immediate need to ship these samples. Your timely response will be most\nappreciated.\nThank you for your time and attention!\nSincerely,\nSusan E. McDOnough, MS\nPresident,\nS.E.McDonough & Associates, Inc.\n4921 Southfork Drive, Suite 1\nLakeland, FL 33813\nName: Susan E. McDonough\nOrganization: S.E. McDonough & Associates, Inc.\nEmail: sema@tampabay.rr.com\nAddress: 4921 Southfork Drive, Suite 1\nCity: Lakeland\nZip Code: 33813\nPhone: 863.709.0590\nCountry: USA\nFAX: 863.907.0592\n2","truncated":false,"body_characters":10764}