Occidental Chemical Company — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, D.C. 20590 FEB 1 8 2014 Mr. Norman Dodson Technical Services Occidental Chemical Company 6200 South Ridge Road Wichita, KS 67026 Reference No. 13-0051 Dear Mr. Dodson: This is in response to your letter, e-mails, and telephone conversations with a member of my staff requesting that Pipeline and Hazardous Materials Safety Administration (PHMSA) reconsider its response in its December 11, 2012 clarification letter, Reference No. 12-0208, to you concerning the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the Materials of Trade (MOTs) regulations. Specifically, you ask if the portion of transportation where your customers' employees transport chemical samples by private motor vehicle from their places of business to the facilities of companies they hire (e.g., FedEx) to package and prepare these samples for transportation on your customers' behalf allows the samples to qualify as MOTs. In addition, you state the following: • Your company supplies these products to its customers in bulk packages and the samples returned to your company are packaged in quantities of one pint or less; • The chemical products your company supplies its customers meet the following hazard class definitions: Divisions 5.1 (oxidizer) Packing Group (PG) II, and 6.1 (poisonous) PG II and III, and Class 8 (corrosive) PG II and III; and • Your customers' employees are not hazmat trained in conformance with Subpart H (Training) of Part 172 the HMR, and do not possess the packaging and other materials needed to prepare these samples for transportation. The answer is no. The intent of the MOTs exception is to provide relief for a private carrier that permits him or her to transport by motor vehicle certain hazardous materials, other than hazardous waste, that are used in direct support of the carrier's principal business other than transportation (see§ 171.8). Although the HMR do not specifically define "direct support of a principal business that is other than transportation," it is this Office's intent that this phrase means the company is transporting its own business products for the purpose of carrying out the activities of its business and not to offer these materials for transportation. Therefore, a hazardous material prepared in conformance with the MOTs requirements no longer qualifies#

Page 2as a MOTs the moment a shipper offers it for transportation in a manner not authorized under § 173.6. However, the HMR permits the hazard classes you described, with certain exceptions, to be transported by motor vehicle, rail car, and aircraft, in combination packagings that comply with the provisions in § 173.13. Packagings that comply with § 173.13 are excepted from the labeling, placarding, and segregation requirements of the HMR. Please note that this exception does not permit materials that are poisonous by inhalation to be transported by motor vehicle, railcar, or aircraft. Also, while employees that transport hazardous materials under the MOTs exception must be trained on and comply only with the MOTs requirements prescribed in§ 173.6, employees that transport hazardous materials in conformance with§ 173.13 must be hazmat trained in conformance with 49 CFR Part 172, Subpart H (Training). I hope this satisfies your request. Sincerely, T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division 2#

Page 3Edmonson 9173~" Drakeford, Carolyn (PHMSA) From: Sent: To: Subject: Attachments: fVl cui-en<& f 6 r Tv-a.c{e INFOCNTR (PHMSA) Friday, February 22, 2013 9:56AM Drakeford, Carolyn (PHMSA) FW: Appeal of Letter of Interpretation 060075.pdf; Oxy Letter of Interpretation. pdf; Request for formal letter of interpretation -----Original Message----- From: INFOCNTR (PHMSA) Sent: Thursday, February 14, 2013 1:29 PM To: 'norman_dodson@oxy.com' Subject: FW: Appeal of Letter of Interpretation Hi Carolyn, We received the following request for a formal letter of interpretation. Thanks, Victoria -----Original Message----- From: Norman Dodson@oxy.com [mailto:Norman Dodson@oxy.com] Sent: Thursday, February 14, 2013 10:45 AM To: INFOCNTR (PHMSA) Subject: Appeal of Letter of Interpretation I requested a formal letter of interpretation regarding 49 CFR 173.6 Materials of Trade exceptions in September of 2012 (see attached email). I received the formal letter dated December 11, 2012 in December. Mr. Foster, Chief of the Regulatory Review and Renivention Branch, essentially denies my company's ability to use this exception to enable our customers to transport samples of our product to a certified packager of Hazardous Goods in a private vehicle. The purpose of doing so is to send the sample to us for analysis. I have attached Mr. Foster's letter. Mr. Foster cites as the reason for the denial of this exception is that the samples we are having our customers transport are being transported solely for the purpose of being packaged for shipment. Not in direct support of their business. I wish to state that our customers are transporting these samples in support of their business because the product is not performing correctly and therefore has disrupted their process. For this reason, they must send it to us for analysis. Since they have no one certified to do this correctly, it must be transported to someone who can. I would like to respectfully appeal this decision, and site as an example that we can use this exemption, another attached letter of interpretation to West Marine Products Inc. in June of 2006, reference No. 06-0075. I cite as an example, the first question that is answered yes. OxyChem's letter of interpretation is reference no. 12-0208. Please let me know your decision as soon as possible. Thanks and best regards. Norman Dodson Technical Services OxyChem Office: 316-529-7577 Fax: 713-985-1507 1#

Page 4The information contained in this message may be confidential and/or privileged. This message is intended to be reviewed by the individual or organization named above. If you are not the intended recipient, you are hereby notified that any review, dissemination or copying of this message or the information contained herein and in its attachments, if any, is prohibited. If you have received this message in error, please immediately notify the sender by return e-mail and delete this message and attachments from your system. 2 ------------ -------~------------#

Page 5U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration i200 New Jersey Avenue, SE Washington, D.C. 20590 DEC 1 1 2012 Mr. Norman Dodson Occidental Chemical Company 6200 South Ridge Road Wichita, KS 67026 Reference No. 12-0208 Dear Mr. Dodson: This is in response to your September 14, 2012 e-mail requesting clarification of the exceptions for Materials of Trade (MOTs) under§ 173.6 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). In your letter, you state that to analyze the quality of the chemicals your company supplies to its customers, these customers send samples of these chemicals in amounts of one pint or less to your company for testing. You state customers return the following materials to your company for testing: 1) UN 1496 Sodium Chlorite, 5.1 (oxidizer), PG II 2) UN 1593 Dichloromethane, 6.1 (poisonous), PG III 3) UN 1789 Hydrochloric acid, 8 (corrosive), PG II and III 4) UN 1846 Carbon tetrachloride, 6.1, PG II 5) UN 1888 Chloroform, 6.1, PG III 6) UN 1897 Tetrachloroethylene, 6.1, PG III 7) UN 1908 Chlorite solution, 8, PG II and III (the primary material being shipped) You also state some of your customers do not have employees trained to prepare and offer hazardous materials for transport in conformance with the HMR, but a carrier informed you that your customers can transport their chemicals as MOTs by motor vehicle to the carrier for its staff to properly package and transport because your customers are not transporting the samples for commercial purposes. You ask if this statement is correct. The answer is no. A "Material of trade" is a hazardous material, other than a hazardous waste, that is carried on a motor vehicle: (1) for the purpose of protecting the health and safety of the motor vehicle operator or passengers; (2) for the purpose of supporting the operation or maintenance of a motor vehicle (including its auxiliary equipment); or (3) by a private motor carrier (including vehicles operated by a rail carrier) in direct support of a principal business that is other than transportation by motor vehicle (see§ 171.8). Your customers are transporting chemical samples to the carrier solely for the purpose of offering them for transportation in#

Page 6commerce, not to perform tasks that are in direct support of a business that is other than transportation by motor vehicle, criteria (3) in the definition of "material of trade." Therefore, the chemicals must be transported under other provisions in the HMR authorized for the specific hazards each sample contains at the time it is offered for transportation. I hope this satisfies your request. Sincerely, T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division 2#

Page 7Drakeford, Carolyn (PHMSA) From: Sent: To: Subject: Importance: Norman_Dodson@oxy.com Friday, September 14, 2012 4:20PM INFOCNTR (PHMSA) Request for formal letter of interpretation High I would like to request a formal letter of interpretation regarding 49 CFR 173.6 Materials of trade exceptions. My company sells commodity chemicals to other companies. On occasion, questions arise regarding the quality of this product making it necessary for the customer to need to ship a small sample ( 1 pint or less) to us for follow up analyses. Problems arise when the customer does not have trained and certified people to prepare and offer for shipment, these hazardous products. The next choice would be for them to take this one pint sample to a company that offers these services. An example of such a company would be AirPack Inc. A problem may exist with this option if an employee of the customer company places the sample in a motor vehicle and drives it to the packaging company. I have been told by AirPack Inc., that they could lawfully do this under 49 CFR 173.6 as long as the container was of the proper integrity and secured from shifting. The reasoning being that the customer is not transporting the samples over the road for commercial purposes. The one pint chemical samples that these customers would be transporting would be the following: Chloroform II UN1888 //Toxic II 6.1 II PG Ill Dichloromethane // UN1593 //Toxic II 6.1 II PG Ill Tetrachloroethylene //UN1897 //Toxic II 6.1 II PG Ill Carbon Tetrachloride II UN1846 //Toxic II 6.1 II PGII Sodium Chlorite II UN1496 II Oxidizer II 5.1 II PGII Chlorite Solution I I UN1908 I I Corrosive I I 8 I I PGII & Ill (This would be the primary one shipped) Hydrochloric Acid// UN1789 II Corrosive II 8 II PG II & Ill We would like to be able to advise these customers that they can legally transport these samples to a certified hazmat packager for preparation for shipping. However, we need to know that we are interpreting this correctly. Your prompt attention to this request would be greatly appreciated. You may send the letter to my attention at this email address, or if you need to send it by regular mail delivery, the address is: Attn: Norman Dodson Occidental Chemical Co. 6200 South Ridge Road Wichita, KS 67026 Thanks and best regards. Norman Dodson Technical Services OxyChem Office: 316-529-7577 Fax: 713-985-1507 norman dodson@oxy.com The information contained in this message may be confidential and/or privileged. This message is intended to be reviewed by the individual or organization named above. If you are not the intended recipient, you are hereby notified that any review, dissemination or copying of this message or the information contained herein and in its attachments, if 1#

Page 8U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration JUN 6 2006 400 Seventh Street, S.W. Washington, O.C. 20590 Mr. Todd A. Nash Director, Regulatory Compliance West Marine Products, Inc. 500 Westridge Drive Watsonville, CA 95076 Reference No. 06-0075 Dear Mr. Nash, This is in response to your March 24, 2006 letter requesting clarification on whether your retail organization's employees may routinely deliver hazardous materials to your store and customer locations using private and for-hire vehicles under the Materials of Trade (MOTs) exceptions prescribed in§§ 171.8 and 173.6 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You stated these items are for replenishment of inventory or to fulfill an existing sale. We have paraphrased your questions and answered them in the order provided. Ql. The wholesale business utilizes private company vehicles and drivers to deliver sold goods and return unwanted items from customer locations. May those drivers use the MOTs exception under these circumstances if the hazardous materials meet the MOTs definition prescribed in § 171.8 and comply with applicable requirements under§ 173.6? Al. Yes. Under the HMR, one of the defining conditions for MOTs is a hazardous material, other that a hazardous waste, transported by a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle. If a wholesale business uses its own vehicles and driver~ to transport goods to and from customer locations, then the MOTs exception in § 173.6 may be utilized. Note, however, that if the wholesale company hires a motor carrier to transport goods to and from customer locations, the MOTs exception does not apply. Q2. May the drivers transport hazardous materials products marked with the proper shipping description "Consumer commodity, ORM-D" under the MOTs exception provided they comply with the definition for MOTs under§ 171.8 and applicable requirements under§ 173.6? A2. Ye>. Consumer commodities that conform to the HMR requiremv1ts applicable to MOTs may be transported as MOTs. 171· f !13. (p 1111111111 111111111 060075#

Page 9Q3. Many of the items to be transported are not eligible for the limited quantity or consumer commodity exceptions under the HMR (e.g., a 1 gallon can of acetone). Provided a package containing these materials conforms to the MOTs requirements prescribed in §§ 171.8 and 173.6, and the weight of MOTs aboard the motor vehicle does not exceed 220 kg (440 pounds), would the package be eligible for the MOTs exceptions? A3. Yes. Q4. May a store associate transport hazardous materials in his or her own vehicle between stores or to a customer location using the MOTs exceptions provided the packages comply with the definition for MOTs under § 171.8 and applicable requirements under § 173.6? A4. Yes. See Answer AI above. I hope this information is helpful. Sincerely, f . I II _j lr- J::J ' / S~san Gorsky 6 Regulations Officer Office of Hazardous Materials Standards -------·---------~--~-#

Page 10a West Marine ~ivnonson '§113.Z, MoT LJI:,. -oo lS March 24, 2006 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration Office of Hazardous Materials Standards (PHH -1 0) 400 7'h Street, S.W. Washington, DC 20590-0001 Re: Applicability of 173.6 to retailers To: Susan Gorsky, Regulations Officer This letter is to follow-up on the phone conversation we had on March 24, 2006 concerning compliance with the Materials of Trade exception covered under 49 CFR, Sections 171.8 & 173.6. West Marine has ques.tions regarding a previous interpretation you provided in the August 23, 2005 letter to Mark U. DuBois at Reichold (RefNo. 0 1-0012). According to the aforementioned letter, "It is acceptable for companies that routinely transport and deliver hazardous materials to use the MOTs exception." West Marine is a retail organization that also has a wholesale division named Port Supply. Routinely West Marine/Port Supply transports hazardous materials to our store and customer locations using both private and for hire vehicles. These products are either for replenishment of inventory or to fulfill an existing sale. West Marine would like to request an official letter of interpretation from your office clarif'y:ing the questions below. L The wholesale business utilizes private company vehicles and drivers to deliver sold goods and return unwanted items from customer locations. May those drivers utilize the MOTs exception in these circumstances assuming the hazardous materials meet the MOTs definition in §171.8 and all applicable conditions of §173.6? 2. May the drivers transport products marked "Consumer Commodity ORM-D" as their common or proper shipping name under the MOTs exceptions assuming the hazardous materials meet the MOTs definition in § 171.8 and all applicable conditions of §173.6? 3. Many of the items transported would not be eligible for the Limited Quantity or Consumer Commodity ORM-D provision (e.g. 1 gallon can of acetone). Would a package with these products be acceptabl<: under MOTs ___________ -aJassti!Ping the hazardous-materials meet the MO'fs-defmitio,l in § 171.8 and allapplicablh>e~c~o~n-"di"'·u.,.·o'""n"'s'o~f'§"'l..,7.,.3'-.6C'l'f~------ 4. May a store associate transport a hazardous material in their own vehicle between stores or tc Cl customer location assuming the hazardous materials meet the MOTs defmition in § 171.8 and all applica0le conditions of §173.6? I look forward to your response. Should you have any questions or require additional information, pJ,~ase do not hesitate to contact me at (831) 761-4470. Very truly yours, Todd A. Nash Director of Regulatory Compliance West Marine Products Inc. Page 1 of l -----·~---------#