{"operation":"document","citation":"13-0101","title":"Regulatory Resources, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-07-31","effective_on":null,"summary":"13-0101 response to Regulatory Resources, Inc. concerning 173.427, 173.443.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0101.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0101.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0101","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130101.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\nJUL 3 1 2013\nMr. W.A. Winters\nRegulatory Resources, Inc.\n167 Keene Road\nRichland, WA 99352\nRefNo.: 13-0101\nDear Mr. Winters:\nThis is a response to your May 9, 2013 email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 1 00-185) with regard to the transportation of\nClass 7 radioactive materials. Specifically, you seek clarification on the requirements for\nnon-fixed radioactive contamination in § 173.443 and low specific activity (LSA) materials in\n§ 173.427. Your questions and PHMSA's responses are summarized below:\nQ 1. Does the presence of non-fixed radioactive contamination on the external surface\nof a package, within the limitations provided in § 173.443, violate the general\npackaging requirement in § 173 .24(b )( 1) that there should be no identifiable release of\nhazardous materials to the environment?\nA 1. The answer is no. Section 173 .24(b )(I) states that, except as otherwise provided\nin this subchapter, each package used for the shipment of hazardous materials shall be\ndesigned, constructed, maintained, filled, its contents so limited, and closed, so that\nunder conditions normally incident to transportation there will be no identifiable\nrelease of hazardous materials to the environment. The contamination controls in\n§ 173.443 require that the level of non-fixed (removable) radioactive contamination on\nthe external surface of each package must be kept as low as reasonably possible. The\nlimits described in this section prescribe activity limits deemed safe for transportation\nand for which general packaging requirements in§ 173.24 cannot encompass.\nQ2. Does the presence of non-fixed radioactive contamination on the external surface\nof a package, within the limitations provided in § 173.443, supersede the general\npackaging requirement in § 173 .24(b )( 4) that there should be no hazardous material\nresidue adhering to the outside of the package during transport?\nA.2. The answer is yes. The contamination controls in§ 173.443 state that the level of\nnon-fixed (removable) radioactive contamination on the external surface of each\npackage must be kept as low as reasonably possible. The limits described in this\nsection prescribe activity limits deemed safe for transportation and for which general\npackaging requirements in§ 173.24 cannot encompass.\n\n<<<PAGE 2>>>\n\nQ3. Does the term \"any package\" as used in the contamination control requirements\nin§ 173.443(b) limit the application to a specific package type or material of\nconstruction?\nA3. The answer is no. This section applies to any packages, regardless of type or\nmaterial of construction, transported as exclusive use shipments by rail or public\nhighway only.\nQ4. Does the requirement in§ 173.427(a)(6)(ii) prohibiting loose radioactive material\nin the conveyance prohibit the transportation of unpackaged LSA radioactive materials\nin the same conveyance as packaged LSA radioactive materials? You provide the\nexample of a conveyance loaded with both LSA-II material contained in an industrial\npackaging (IP) and in addition, unpackaged LSA-I loaded directly into the\nconveyance, which is authorized as packaging for the LSA-I material.\nA4. The answer is yes. In the scenario you describe, unpackaged LSA radioactive\nmaterials and packaged LSA radioactive materials may not be in the same\nconveyance. The provisions of§ 173.427(a)(6)(ii) state that there may be no loose\nradioactive material in the conveyance. Non-fixed radioactive contamination on\npackages within the limits allowed by § 173.443 would not be prohibited by\n§ 173.427(a)(6)(ii).\nQ5. Provided the conveyance is authorized as a packaging for LSA materials,\nincluding loose material as contents, would the packaging as described in the scenario\nin Q4 meet the requirements of§ 173.427(a)(6)(ii), provided there was no leakage of\nmaterial from the conveyance?\nA5. See A4. Provided the conveyance is authorized as the packaging for the LSA\nradioactive materials being transported, including the unpackaged LSA materials, if\nthe provisions of§ 173.427(c) are met and there was no leakage of material from the\nconveyance this satisfies the requirement in § 173.427(a)(6)(ii).\nQ6. Do the requirements applicable to LSA and surface contaminated objects (SCO)\nin§ 173.427(a)(6) supersede the contamination control limits applicable to non-fixed\nradioactive contamination on the outside of a package or vehicle surface found in\n§ 173.443?\nA6. The answer is no. As specified in§ 173.427(a)(4), shipments ofLSA and SCO\nradioactive materials must adhere to the contamination control limits specified in\n§ 173.443.\nQ7. Would marking and labeling ofpackagings with the UN identification number,\nproper shipping name and label applicable to exclusive use shipments of LSA and\nSCO material be permitted if they are marked in accordance with the requirements in\n§ 173.427(a)(6)(vi)?\nA 7. The answer is yes. Though packaged and unpackaged Class 7 radioactive\nmaterials are excepted from the requirements of marking and labeling when\n\n<<<PAGE 3>>>\n\ntransported in accordance with§ 173.427(a)(6)(vi), shippers may permissively mark\nand label.\nQ8. What is the role of the States in the enforcement of hazardous materials\ntransportation?\nA8. In your incoming email, you provide examples of scenarios concerning a State's\nenforcement of radioactive materials transportation, such as the use of the term \"any\npackage,\" as stated in§ 173.443(b) being limited to metal casks only. Additionally,\nyou cite the example of a State not permitting the non-fixed radioactive contamination\nlimits specified in § 173 .443(b) for exclusive use shipments, and only permitting\ncontamination levels authorized in § 173.443(a), for shipments not being transported\nunder exclusive use provisions. Furthermore, you note a State's interp1etation of the\nterm \"loose radioactive material\" as used in § 173.427(a)(6)(ii) to mean non-fixed\nradioactive contamination.\nStates are encouraged to adopt and enforce the requirements in the HMR as State\nrequirements (i.e., State law or regulations). Federal Hazardous Materials\nTransportation Law ( 49 USC § 5125(a)) preempts a State requirement when (1) it is\nnot possible to comply with both the HMR and the State requirement, or (2) the State\nrequirement is an \"obstacle\" to accomplishing and carrying out Federal hazmat law or\nthe HMR. Furthermore, 49 USC§ 5125(b) sets forth areas where State requirements\nmay not have any substantive differences from Federal Hazardous Materials\nTransportation Law and the HMR.\nThe HMR outlines how to transport hazardous materials in commerce - and provides\nthat any other way is prohibited. Therefore, preemption issues arise whenever a State\nenforces its requirements in a way that narrows an authorization in the HMR for\ntransporting a hazardous material in commerce (i.e., does not allow something that the\nHMR does allow). These issues may be addressed and resolved through an\nadministrative determination by PHMSA. The purpose of this is to determine whether\nFederal Hazardous Materials Transportation Law preempts the State requirement in\nresponse to an application by a person directly affected by the State requirement ( 49\nUSC § 5125( d)). The procedures for applying for an administrative preemption\ndetermination are set forth in subpart C of part 107 in the 49 CFR (§ 107.201 et seq.).\nI hope this information is helpful. If you have any more questions, please do not hesitate to\ncontact this office.\nSincerely,\nRobert Benedict\nChief: Standards Development\nStandards and Rulemaking Division\n\n<<<PAGE 4>>>\n\nMay 9, 2013\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nMr. Charles E. Betts\nDirector, Office of Hazardous Materials Standards\nU.S. DOT/PHMSA (PHH-10)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nDear Mr. Betts,\nThank you in advanced for your time with these questions concerning Class 7 (radioactive) materials.\n1. 2. 3. 4. With regard to Class 7 (radioactive) materials, is my understanding correct that as long as the\npackage containing the Class 7 (radioactive) material has performed its containment function as\ndesigned and upon inspection shows no evidence of damage or loss of integrity, the presence of\nnon-fixed radioactive contamination on the external surface ofthe package within the allowed limits\nof§ 173.443 is not in violation of§ 173.24(b)(1)?\nWith regard to Class 7 (radioactive) materials, is my understanding correct that the \"no hazardous\nmaterial residue adhering to the outside of the package during transport\" regulation as prescribed in\n§ 173.24(b)(4) is qualified and quantified by the authorized external non-fixed contamination limits\nof§ 173.443? Hence, external non-fixed radioactive contamination remaining on the external\nsurface(s) of its package is allowed, without regard to§ 173.24(b)(4), if within the limits stated in§\n173.443.\nWith regard to external non-fixed radioactive contamination on a package of Class 7 (radioactive)\nmaterial shipped exclusive use, is my understanding correct that the term \"any package\" as seen in\n§ 173.443(b) means exactly what it states and does not limit the application to only one package\ntype and material of construction?\nIs my understanding correct that the§ 173.427(a)(6)(ii) requirement \"there may be no 1oose\nradioactive material in the conveyance\" is not referring to whatever non-fixed radioactive\ncontamination is present as allowed by§ 173.443, but rather is specifically prohibiting unpackaged,\nloose radioactive material from being loaded into the conveyance with packaged material (as\nclarified by the example below)?\nA Low Specific Activity (LSA) material categorized as LSA-11 is placed inside an authorized Industrial\nPackage (IP). The IP is loaded onto a conveyance which itself is not the Class 7 (radioactive)\npackage. The conveyance is to be shipped exclusive use. Radioactively contaminated soil that\nmeets the activity limit for LSA-1 is placed directly onto the conveyance. This soil does not benefit\nfrom any additional packaging; the soil meets all conditions to be unpackaged per§ 173.427(c). A\nmeans of containment is placed on the conveyance that prevents leakage of radioactive material\nfrom the conveyance. This configuration is prohibited per§ 173.427(a)(6)(ii) since the conveyance\n(which is not \"the package\") contains loose (i.e., uncontained) radioactive material.\n\n<<<PAGE 5>>>\n\n> 516-\nVoice: 509-628-1 020 I Fax: -0972\ninfo@regolatoryresources.net\nwww.regulatoryresources.net\n·· -~-!.-t:>c·---··10 -n·-- ---- · ---w-T·- !S\"Iilo<!>\"Jiiri\" ___ ·-m --·-c-y nt ......... ,\n·-- · ·m r ·en\nMay9, 2013\nPage 2\n5. 6. 7. 8. 9. Is my understanding correct that, given the example in question 4, if the conveyance itself were the\nauthorized package for both materials (contained and loose), the transport configuration would be\nacceptable under§ 173.427(a)(6)(ii) as long as there was no leakage from the conveyance?\nWith regard to the transport of LSA material (and surface contaminated objects (SCO)L is my\nunderstanding correct that the§ 173.427(a)(6)(ii) requirement that \"there may be no loose\nradioactive material in the conveyance\" is directed to unpackaged radioactive materials and in no\nway overrides or nullifies the external package and vehicle surface non-fixed radioactive\ncontamination limits of§ 173.443 as references in§ 173.427(a)(4)?\nWith regard to the transport of LSA material (and SCO) under exclusive use conveyance and in\ncompliance with § 173.427(a)(6), is my understanding correct that the display of the applicable\nproper shipping name and identification number on the package is not prohibited when the package\nis marked as specified in § 173.427(a)(6)(vi)?\nWith regard to the transport of LSA material (and SCO) under exclusive use conveyance and in\ncompliance with § 173.427(a)(6L is my understanding correct that the display of the Class 7 labels\non the package in conformance with§ 172.403 is not prohibited when the package is marked as\nspecified in § 173.427(a)(6)(vi)?\nWith regards to a State's authority in enforcing the Hazardous Materials Regulations (HMR), is my\nunderstanding correct that a State cannot be more conservative in their \"interpretation\" than what\nis already covered and allowed by the HMR. For example, by limiting \"any package\" as stated in §\n173.443(b) to metal casks only? For example, by not recognizing the non-fixed radioactive\ncontamination limits as specified in§ 173.443{b) for exclusive use shipments and mandating\nenforcement to§ 173.443{a) levels only? For example, by stating \"loose radioactive material\" as\nspecified in§ 173.427{a)(6)(ii) applies to non-fixed radioactive contamination thereby overriding§§\n173.427{a){4) and 173.443?\nThank you again.\nFor Regulatory Resources, Inc.,\nW. A. Winters, CET, CHMM\nPresident\nWAW/Iom","truncated":false,"body_characters":12973}