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Interpretation Response #05-0147 ([Swidler Berlin, LLP] [Mr. Robert N. Steinwurtzel])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Swidler Berlin, LLP

Individual Name: Mr. Robert N. Steinwurtzel

Location State: DC Country: US

View the Interpretation Document

Response text:

Nov 21, 2005

Mr. Robert N. Steinwurtzel                       Reference No. 05-0147
Swidler Berlin, LLP
3000 K Street, NW, Suite 300
Washington, DC 20007-5116

Dear Mr. Steinwurtzel:

This is in response to your letter asking when a lead compound meets the definition of a marine pollutant under § 171.4 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if a lead compound must be soluble to b described as “Lead compounds, soluble, n.o.s.” from the “List of Marine Pollutants,” Appendix B to § 172.101, and what definition may be used to determine when it is soluble. You state your material does not meet the definition of a Division 6.1 (poisonous material) and, therefore, may not be described under the entry “Lead compounds, soluble, n.o.s., 6.1 (poisonous), UN 2291, PG III” listed in the Hazardous Materials Table (HMT; § 172.101). We have paraphrased your questions and answered them in the order provided.

Q1.      When is a material described as “Lead compounds, soluble n.o.s.,” a marine pollutant as specified in the HMR in Appendix B to § 172.101, List of Marine Pollutants? What tests and results are appropriate for determining if a lead compound is soluble or insoluble?

Al.        The defining criteria for the solubility of a lead compound are in § l72.102(c)(l), Special Provision 138, of the HMR. In accordance with Special Provision 138, a lead compound is soluble when it exhibits a solubility greater than 5 percent after being mixed with a 0.07 M (molar concentration) of hydrochloric acid and stirred for one hour. If the material exhibits a solubility of 5 percent or less after the test is completed, it is considered insoluble. The International Maritime Dangerous Goods Code identifies “Lead compounds, soluble, n.o.s.,” in Columns 4 and 6 of the Dangerous Goods List (DGL; Chapter 3.2) as a marine pollutant, and simultaneously assigns to it the definition for the solubility of lead compounds under Chapter 3.3.1, Special Provision 199. When we incorporated this definition in § 172.102, Special Provision 138 of the HMR, our intent was to permit the definition to also be used for the lead compound entry on the List of Marine Pollutants in § 172.101, Appendix B. However, we neglected to include that language. We will clarify this in a future rulemaking.

Under the HMR, a soluble lead compound is a marine pollutant when it is in a solution or mixture of one or more marine pollutants listed in Appendix B to § 172.101 and is packaged in a concentration that equals or exceeds ten percent by weight of the solution or mixture. See § 171.8. The requirements specific to marine pollutants do not apply to a non-bulk packaging transported by motor vehicle, rail car or aircraft. See § 171.4(c).

Q2.      Must the marine pollutant table listing “Lead compounds, soluble, n.o.s.” meet the same hazard class criteria as the listing “Lead compounds, soluble, n.o.s., 6.1, UN 2291, PG III” on the HMT? That is, does a lead compound have to be both soluble and a Division 6.1 (poisonous) material to be considered a marine pollutant?

A2.      No. As discussed in answer Al, a soluble lead compound is a marine pollutant when it meets the definition for the solubility of lead compounds prescribed in § 172.l02(c)(l), Special Provision 138, and the definition for a marine pollutant prescribed in § 171.8.

Q3.      Is the correct name for a “lead compounds, soluble” material that is not a hazardous substance and does not meet the definition in § 173.132 for a Division 6.1 material “Environmentally hazardous substances, solid n.o.s., 9 (miscellaneous), UN 3077, PG III, Marine Pollutant (Lead Compounds)”?

A3.      A soluble lead compound that meets the definition of a marine pollutant in § 171.8 and no other hazard class, and that is not a hazardous substance or a
hazardous waste, may be described using the proper shipping description “Environmentally hazardous substances, liquid n.o.s. (lead compounds), 9, UN
3082, PG III, Marine Pollutant,” provided all other applicable HMR requirements
for the material are met.

Q4.      Does a domestic shipment of a marine pollutant in a bulk package by motor vehicle, rail car, or aircraft need to be shipped, packaged, marked, labeled, and placarded as a hazardous material?

A4.      A marine pollutant transported in commerce in a bulk package is regulated as a hazardous material under the HMR. For domestic transportation, if the marine pollutant meets the hazard class definition in § 173.140 for a Class 9 material, it must be accompanied by a shipping paper and packaged, marked, and labeled in conformance with the HMR, but is not required to be placarded. See
§ 172.504(0(9). If the marine pollutant meets the definition of any other HMR hazard class, it must comply with the applicable requirements in the HMR for
shipping papers, packaging, marking, and labeling, as well placarding for each hazard class it meets.

I hope this information is helpful.



Hattie L. Mitchell, Chief
Regulatory Review and Reinvention
Office of Hazardous Materials Standards

172.101 App. A

Regulation Sections

Section Subject
173.132 Class 6, Division 6.1-Definitions