Railroad Regulatory Safety Services — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue SE Wash1ngton. DC 20590 DEC 112012 Mr. Raymond Kasey Railroad Regulatory Safety Services 7500 Masonville Drive Falls Church, VA 22042-3520 Ref. No.: 12-0181 Dear Mr. Kasey: This responds to your August 1, 2012 letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the proper classification of a marine pollutant, in addition to carrier verification requirements. In your letter, you state that your client, a class one and three railroad carrier, recently accepted a shipping paper for a bulk package identified as "p-Dodecylphenol" with no other description listed on the shipping paper. As an attachment, you provide a material safety data sheet (MSDS) for a product called "Lubrizol 9222R" which lists its hazardous ingredient as "p-Dodecylphenol, CAS No. 74499-35-7, Percentage (by wt.) from 1 to 4.9 percent." You further indicate that Dodecylphenol is listed in Appendix B to§ 172.101 with a "PP" identifying the material as a severe marine pollutant. Your questions are paraphrased and answered below. 01: You ask whether "Lubrizol9222R," according to the attached MSDS, meets the definition of a (severe) marine pollutant? Additionally, you ask if a material is considered a listed marine pollutant if the technical name of the material does not specifically appear in the table of marine pollutants(§ 172.101, Appendix B) but a synonym does? A1: In accordance with § 173.22, it is the shipper's responsibility to properly classify and describe a hazardous material. This Office does not perform that function. Under the HMR, a material is considered a listed marine pollutant if either its technical name or a synonym appears in the table of marine pollutants. Furthermore, if the listed marine pollutant is in a mixture or solution, the shipper should consult the definition of a marine pollutant in § 171.8. In order to be considered a marine pollutant, the listed substance must be in a concentration of ten percent by weight, or if a severe marine pollutant, be in a concentration of one percent by weight.#

Page 202: A2: 03: A3: Therefore, if: (1) p-Dodecylphenol is a synonym to Dodecylphenol; and (2) the concentration of Dodecylphenol in the solution is at least one percent by weight, then the answer would be yes and "Lubrizol 9222R" would appear to be a marine pollutant. However, as stated above, it is the shipper's responsibility to properly classify and describe a hazardous material. You ask what is the required shipping name when a product shipped under a trade name is offered for transportation and contains the chemical p-Dodecylphenol in a bulk package at or above the concentration specified in Appendix B of the Hazardous Materials Table (HMT)? Please note that marine pollutants listed in Appendix B are not necessarily listed by name in the§ 172.101 HMT. If a marine pollutant not listed by name or by synonym in the § 172.101 HMT meets the definition of any hazard Class 1 through 8, you must determine the class and division of the material in accordance with§ 173.2a of the HMR. Furthermore, you must also select the most appropriate hazardous material description and proper shipping name. If a marine pollutant not listed by name or by synonym in the § 172.101 HMT does not meet the definition of any Class 1 through 8, you must offer it for transportation under the most appropriate of the following two Class 9 entries: "Environmentally hazardous substances, liquid, n.o.s.," UN3082, or "Environmentally hazardous substances, solid, n.o.s." UN3077. In this specific case, it would appear that the former (along with a technical name) is the appropriate proper shipping name. You ask whether a carrier may rely on information provided by the manufacturer (or previous offeror) and in good faith rely on that information when transporting those hazardous materials? The answer is yes. Although the HMR place primary responsibility on the shipper, or "person who offers," to properly class and communicate the hazard of a hazardous material, a carrier may be held responsible for non-compliance with applicable requirements to the extent that the carrier knows, or should have known, that a material offered for transportation is hazardous. A carrier may rely on information provided by the shipper, unless the carrier knows, or a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided is incorrect. I trust this satisfies your inquiry. Please contact us if we can be of further assistance. Sincerely, -=-/r:#hv;(_/~ T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division#

Page 33a.atlroab 3a.egulatorp ~afetp ~erbite~ 7500 ;ifllasonbille ilBribe jfalls QCburcb, )3trginia 22042-3520 m:elepbone 202-230-9563 or 703-560 -0229 August 1, 2012 Mr. Charles Betts, Director, Standards and Rulemaking Division Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, S.E. Washington, D.C. 20590 Dear Mr. Betts: I represent a class one and three railroad and need clarification concerning the obligations of carriers when presented with a shipping paper listing a chemical that is not readily identifiable in the hazardous materials table. Recently, carriers accepted a shipping paper for a bulk package identified as p-dodecylphenol. There was no other description listed on the shipping paper offered or accompanying the shipment. Neither "p" nor plain dodecylphenol is listed in the Haz Mat Table in 49 CFR 172.101. I have several questions as follows. While it is incumbent on the shipper to know what the constituents are of the product being shipped, would the requirement of 49 CFR 172.101(c)(14) apply to an "m" (mete:), "o" (ortho), or "p" (para), preceding the chemical name exclude it from being a marine pollutant (MP) or further include it as well if not listed in the Appendix B along with the MP chem cal? My second question is, "when an offeror provides a carrier with a shipping descr ption that is not readily identifiable as a regulated hazardous material, what obligation, if any, docs a carrier have other than transport the bulk package from origin to destination?" When I read further, however, I now find that according to Appendix B of the HMT, dodecylphenol is listed as a severe marine pollutant in certain concentrations, though I reiterate again that it is not listed in the HMT. My third question is, "In the absence of an additional description on the shipping paper, which list the concentration ofp-dodecylphenol, can I, as a carrier reasonably assume trat the bulk package does not contain a marine pollutant and transport it in accordance with the description I received from the offeror?" My fourth question is, "When a product shipped under a trade name is offered fof transportation and contains the chemical p-dodecylphenol in a bulk package at or above the concentration#

Page 4specified in Appendix B of the Hazardous Materials Table, what is the required proper shipping name if any?" I have enclosed the MSDS for this product for your edification of the specific product to which I am referring. As you can see, the shipper offered an MSDS that indicates p-dodecylphenol as being between 1 to 4.9% by weight ofthe product. You will also note in your reading that block 14 lists the product as non-regulated in all countries. My fifth question concerns a carriers' good faith determination in assessing whether a product offered by a shipper can always be accepted in good faith, just as offered, or does acceptance of any material incur other obligations not listed in the HMR? Your assistance in this matter is appreciated. Sincerely, /) J ' /lt'('•j J;'urj Raymond Kasey 3 enclosures#

Page 5LUBRIZOL® 9222R Material Safety Data Sheet LUBRTZOL® 9222R Prepared according to 29CFR 1910.1200. Chemical Product and Company Identification The Lubrizol Corporation 29400 Lakeland Boulevard Wickliffe, Ohio 44092 Tel: (440) 943-4200 Product Trade Name CAS Number Synonyms Generic Chemical Name Product Type Preparation/Revision Date Transportation Emergency Phone No. MSDS No. LUBRIZOL® 9222R Not applicable for mixtures. None. Mixture. Multipurpose. 25 May 2012 U.S.) FOR TRANSPORT EMERGENCY call CHEMTREC: (+ 1) 703-527-3887 (outside the U.S.) 1-800-424-9300 (in the 31663020-3022415-4032271-102103 Appearance Odor Principal Hazards Dark brown liquid. Mild Warning. • Causes respiratory tract initation. • Repeated swallowing of this material may cause adverse reprodnctive effects based on ani nal data. • May canse eye irritation. See Section 11 tor complete health hazard information. Hazardous Ingredients (N/E) -None established 4 Eyes Skin Inhalation Oral Additional Information Rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do Continue rinsing. If eye initation persists, get medical attention. Wash with soap and water. Get medical attention if irritation develops. Launder contaruinated clo d1ing before reuse. Remove victim to fresh air and keep at rest in a position comfortable for breathing. Call a poison center or doctor. DO NOT INDUCE VOMITING. Get innnediatc medical attention. If exposed or concerned: Get medical attention. Flash Point Extinguishing Media Firefighting Procedures Unusual Fire & Explosion Hazards 164 oc, 327.2 op PMCC (Typical) C02, dry chemical, or foam. Water can be used to cool and protect exposed material. Recommend wearing self-contained breathing apparatus. Water may cause splattering. See section I 0 for additional information. Release Measures Spill Procedures Personal Protective Equipment must be worn, see Personal Protection Section for PPE recomme rdations. Ventilate area if spilled in confined space or other poorly ventilated areas. Prevent entry into sewers and waterwa: 'S. Pick up free liquid for Page I I 5#

Page 6LUBRIZOL® 9222R 7 Pumping Temperature Maximum Handling Temperature Handling Procedures Maximum Storage Temperature Storage Procedures Maximum Loading Temperature Exposure Limits Other Exposure Limits Engineering Controls Gloves Procedures Eye Protection Respiratory Protection Clothing Recommendation Flash Point Upper Flammable Limit Lower Flammable Limit Autoignition Point Explosion Data Vapor Pressure pH Specific Gravity Bulk Density Water Solubility Percent Solid Percent Volatile Volatile Organic Compound Vapor Density Evaporation Rate Odor Appearance Viscosity Odor Threshold Boiling Point Pour Point Temperature Melting I Freezing Point Stability Decomposition Temperature recycle and/or disposal. Residual liquid can be absorbed on inert material. and Storage ""''"·-··--··-··''······ •························································· 75 °C, 167 °F 85 °C, 185 °F Keep containers closed when not in use. Avoid breathing dust, fume, gas, mist, vapors or spray. Jse only outdoors or in a well-ventilated area. Wash thoroughly after handling. Launder contaminated clothing before reuse. Empty container contains product residue which may exhibit hazards of product Dispose of packaging or containers in ace Jrdance with local, regional, national and international regulations. 45 oc, 113 'F Store locked up. See section 10 for incompatible materials. Not determined. Controls/Personal Protection None established Contains mineral oil. Under conditions which may generate mists, observe the OSHA PEL of 5 r rg per cubic meter, ACGIH TWA of 5 mg per cubic meter. Use local exhaust ventilation to control mists or vapors. Additional ventilation or exhaust may be 1 equired to maintain air concentrations below recommended exposure limits. Use nitrile or neoprene gloves. Safety Glasses. Use NIOSH/MSHA approved full face respirator with a combination organic vapor and high effie iency filter cartridge if the recommended exposure limit is exceeded. Use seJfCcontained breathing apparatus for entry into confined space, for other poorly ventilated areas and for large spill clean-up sites. Consult with an industrial hygienist to del ermine the appropriate respiratory protection for your specific use ofthis materiaL A respiratory protection program com J!iant with all applicable regulations must be loll owed whenever workplace conditions require the use of a respirator. Gloves, coveralls, apron, boots as necessary to minimize contact Law1der contaminated clothing before reuse. and Chemical Properties 164 'C, 327.2 °F PMCC (Typical) Not determined. Not determined. Not dete1mined. Material does not have explosive properties. Not determined. Not determined. 1.13 (15.6 °C) 9.42 Lblgal, I. I 3 Kg!L Insoluble. Not determined. Not detemlincd. Not determined. Not dete1mined. Not determined. Mild Dark brown liquid. 22565.2 Centipoise (20 oq 13553 Centipoise (25 oq 5000 Centistokes ( 40 aq 300 Centistokes (I 00 oq 50 Centipoise ( 169 'C) Not determined. Not dete1mined. -9 °C, 16 °F Not dcte1mined. The above data are typical values and do not constitute a specification. Vapor pressure, lata are calculated unless otherwise noted. and Reactivity Material is nmmally stable at moderately elevated temperatures and pressures. Not determined. Page 2 I 5#

Page 7LUBRIZOL® 9222R Incompatibility Polymerization Thermal Decomposition Conditions to Avoid ll Eye Irritation Skin Irritation Respiratory Irritation Dermal Toxicity Inhalation Toxicity Oral Toxicity Dermal Sensitization Inhalation Sensitization Oxidizing agents. Will not occur. Smoke. carbon monoxide, carbon dioxide, aldehydes and other products of incomplete combustion. Under combustion conditions, oxides of the following elements will be formed: calcium, sulfur. Not determined. Chronic Toxicity Carcinogenicity Mutagenicity Reproductive Toxicity Teratogenicity -ACUTE EXPOSURE- May cause eye irritation. Does not meet Canadian D2B or EU R36 criteria. Based on data from < omponcnts or similar materials. Not expected to be a primary skin irritant. Based on data from components or similar materials.· 'rolonged or repeated skin contact as from clothing wet with matetial may cause dermatitis. Symptoms may include redness, edema, drying, and cracking of the skin. Nose, throat and lung irritant. Based on data from components or similar materials. The LD50 in rabbits is > 2000 mg/Kg. Based on data 1iom components or similar materials. No data available to indicate product or components may be a toxic inhalation hazard. The LD50 in rats is > I 0,000 mg/Kg. Based on data from components or similar materials. No data available to indicate product or components may be a skin sensitizer. No data available to indicate product or components may be respiratory sensitizers. - CHRONIC EXPOSURE- This product contains para-dodecylphenol. Rats given high, repeated daily doses ofpara-dodecy phenol by oral intubation experienced effects on a number of organs including adrenal, thyroid, liver, ovary, testes, bone m mow and blood cell formation. The relevance of these effects to humans is uncertain. This product contains mineral oils which are considered to be severely refined and not considere<. to be carcinogenic under !ARC. All of the oils in this product have been demonstrated to contain less than 3% extractable; by the IP 346 test. No data available to indicate product or any components present at greater than 0.1% are mutag< ·nic or genotoxic. This product contains para-dodecylphenol. Rats given high, repeated daily doses ofpara-dodecy phenol by oral intubation experienced adverse reproductive effects. The relevance of these effects to humans is uncertain. This product contains para-dodecylphenol. Pregnant rats given high, repeated daily doses of pan -dodccylphenol by oral intubation gave birth to pups with cleft palate and skeletal malformations. The relevance of these' ffects to humans is uncertain. - ADDITIONAL INFORMATION- Other No other health hazards known. 12 Ecological Information -ENVIRONMENTAL TOXICITY- Freshwater Fish Toxicity Freshwater I nve1iebrates Toxicity The acute LC50 is> I 000 mg!L based on component data. The acute EC50 is> I 000 mg!L based on component data. Chronic effects expected at< I mg/ ~based on component data. Algal Inhibition Not detetmined. Saltwater Fish Toxicity Not determined. Saltwater Invertebrates Toxicity Not detetmined. Bacteria Toxicity The acute EC50 is I 00- I 000 ppm based on component data. Miscellaneous Toxicity Not detetmined. -ENVIRONMENTAL FATE- Biodegradation Bioaccumulation Soil Mobility At least 25% of the components in this product show limited biodegradation based on OECD 30 !-type test data. At least 25% ofthe components in this product show moderate biodegradation based on OECD 302-tyr e test data. 25% or greater of the components display no potential to bioconcentrate. Not determined. Considerations This material, if discarded, is not a hazardous waste under RCRA Regulation 40 CPR 261. Treat mcnt, storage, transpm1ation, and disposal must be in accordance with applicable Federal, State/Provincial, and Local regulations. Waste Disposal 14 ICAOIIATAI ICAOIIATA II Not regulated. Not regulated. Page 3 I 5#

Page 8LUBRIZOL® 9222R IMDG IMDG EMS Fire IMDG EMS Spill TMDGMFAG MARPOL Annex II USCG Compatibility U.S. DOT Bulk DOTNAERG U.S. DOT (Intermediate) U.S. DOT Intermediate NAERG U.S. DOT Non-Bulk U.S. DOT Non-Bulk NAERG Canada Mexico Bulk Quantity Intermediate Quantity Non-Bulk Quantity 15 USA Other TSCA Reg. EU Japan Australia New Zealand Canada Switzerland Korea Philippines China Taiwan SARA Ext. Haz. Subst. SARA Section 313 SARA 311 Classifications CERCLA Hazardous Substances Cal. Prop. 65 U.S. Fuel Registration Finnish Registration Number Swedish Registration Number Norwegian Registration Number Danish Registration Number Swiss Registration Number Italian Registration Number Not regulated. Not applicable. Not applicable. Not applicable. Not determined. Not determined. Not regulated. Not applicable. Not regulated. Not applicable. Not regulated. Not applicable. Not regulated. Not regulated. 85000 KG, 187391 lbs. 11000 KG, 24251 lbs. 400 KG, 882 lbs. Review classification requirements before shipping materials at elevated temperatures. Information - Global Chemical Inventories - All components of this material are on the US TSCA Inventory or are exempt. None known. All components are in compliance witlr the EC Seventh amendment Directive 92 /32/EEC. All components are in compliance with the Chemical Substances Control Law of Japan. All components are in compliance with chemical notification requirements in Australia. All components are in compliance with chemical notification requirements in New Zealand. All components are in compliance with the Canadian Environmental Protection Act and are preseot on the Domestic Substances List. All components arc in compliance with the Environmentally Hazardous Substances Ordinance in : ;witzcrland. All components are in compliance in Korea. All components are in compliance with the Philippines Toxic Substances and Hazardous and Nn :lear Wastes Control Act of l 990 (R.A. 6969). All components of this product are listed on dre Inventory of Existing Chemical Substances in China. All components of this product are listed on dre Taiwan inventory. - Other U.S. Federal Regulations- This product does not contain greater than 1.0% of any chemical substance on the SARA Extren ely Hazardous Substances list. This product does not contain greater tlmn 1.0% (greater than 0.1% for carcinogenic substance) < f any chemical substances listed under SARA Section 313. None !mown. - State Regulations - This product contains the following chemical(s) !mown to the state ofCalifomia to cause cancer :mdlor birth defects based on maximum impurity levels of components:< 0.01 ppm Ethyl benzene, CAS no. 100-41-4 < 0.(11 ppm Naphthalene, CAS no. 91-20-3 < 0.5 ppm cadmium< 0.5 ppm arsenic< 0.5 ppm lead - Product Registrations - Not applicable. Not Registered Not Registered Not Registered Not Registered Not Registered Not Registered - Other I International - Page 4 15#

Page 9LUBRIZOL® 9222R Miscellaneous Regulatory Information Not determined. 16 US NFPA Codes HMIS Codes Precautionary Labels Warning. • Causes respiratory tract irritation . • Repeated swallowing of this material may cause adverse reproductive effects based on ani nal data. • May cause eye initation. Revision Indicators Section: 12 Accumulation. Section: I 2 Saltwater invertebrate toxicity. Changed: 25 Ma { 2012 Changed: 25 Ma { 20 I 2 As the conditions or methods of use are beyond our conh·ol, we do not assume an}' re,,ponsibility and expre:t~.dy disclaim any liability for any use of this p 1·oduct. InfOrmation contained herein i.~ believed to he true and accurate but all statements or suggestions are made without warranty, expressed or implied, regarding accur u:y of the information, the hazards connected with the use of the material or the J'e!mlts to he obtained from the use thereof Compliance with all applicable federal, state, and local regulations remains the responsibility of tire user. Page 5 I 5#