{"operation":"document","citation":"04-0008","title":"Koch Mineral Services, LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-05-26","effective_on":null,"summary":"04-0008 response to Koch Mineral Services, LLC concerning 173.31.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0008.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0008.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0008","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040008.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nMAY 26 2004\nWashington, D.C. 20590\n400 Seventh St., S.W.\nSpecial Programs\nResearch and\nAdministration\nDirector of Transportation Compliance\nMr. Stephen P. Nowicki\nReference No.: 04-0008\nKoch Mineral Services, LLC\n4111 East 37h Street North\nWichita, KS 67220\nDear Mr. Nowicki:\nThis is in response to your letter regarding inspection of tank cars prior to movement under the\nscenario:\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You describe the following\ncontained Petroleum Gas, Liquefied (Propylene), 2.1, UN1075\" sitting idle at the Superior,\nKHLP (Koch Hydrocarbon LP) had five full-service leased tank cars containing \"Residue, last\nWisconsin facility of a supplier not corporately related to any Koch Industries, Inc. company.\nAll five cars had been at this facility for approximately six weeks when, through no action of\nKHLP, they were tendered back to the serving carrier, BNSF, with no stated destination. The\nSuperior facility did not tender a bill of lading or other shipping paper to the railroad. When\nto that point. The Superior facility refused to provide shipping documents and, therefore, KHLP\nKHLP ultimately decided on the next loading point it asked the Superior facility to bill the cars\nprepared the necessary documentation.\nWe note concerning your letter that the tank cars in question were not \"empty;\" rather, they\ncontained residue amounts of Liquefied Petroleum Gas. You ask these questions:\nQ1. Did KHLP have a duty to physically inspect the railcars to meet the requirements of\n173.31(d)?\nA1. Yes, once KHLP decided to prepare the shipping documents, it became an offeror and was\nresponsible to \"determine that the tank car is in proper condition and safe for transportation.\"\nQ2. Hypothetically, would the Superior facility have a duty to physically inspect the railcars\naccording to 173.31(d) before \"releasing\" them to a railroad without billing?\nШИННІШ\n173.31\n040008\n\n<<<PAGE 2>>>\n\nA2. Yes. When the Superior facility tendered the cars back to the railroad, it was responsible as\nan offeror to make the same determination that KHLP had to make when KHLP decided to\nprepare the shipping documents. In fact, given the facts as stated by you, when the Superior\nfacility \"released\" the cars without shipping papers, it was in violation of § 172.200 et seg.\nFurther, and again relying on the facts as you state them, it appears that BNSF was in violation\nof$ 174.24 for accepting and moving the cars without receiving shipping papers.\nQ3. If the Superior facility did physically inspect the cars, would KHLP also have to inspect the\ncars as the most current offeror of the empty tank cars?\nA3. The HMR place a duty on the offeror of a tank car containing hazardous materials to\ndetermine that the car is in proper condition and safe for transportation. Section 173.31(d) lists\nthe minimum external visual inspection that must be performed prior to offering the car. Under\nthe HMR, more than one entity may be responsible for the performance of offeror functions\nprior to offering a shipment for transportation. In the scenario you describe, if the Superior\nfacility physically inspected the cars while KHIP prepared the shipping documentation for the\ncars, both entities would be considered offerors for purposes of the HMR and would be\nresponsible for performing their respective offeror functions in accordance with the HMR. In\nthis case, KHILP would not be required to perform the physical inspection of the cars required\nunder § 173.31(d).\nI trust this satisfies your request.\nSincerely,\nRelave\ndE. Magall\nEdward T. Mazzullo\nDirector, Office of Hazardous Materials\nStandards\n\n<<<PAGE 3>>>\n\nDate: 01/13/04 Time: 01:12 PM To: Office of Hazmats; DHM-10 # 1-202-366-3012\nKBS, LP\nPage: 001-002\nTo:\n'Office of Hazmats;\nFrom:\nKelly Nebergall, ISA Admin.\nCompany:\nOffice of Hazmats; DHM-10\nFax Number:\nCompany:\n1-202-366-3012\nKoch Legal Department\nFax Number:\n316-828-9063\nPhone Number:\nPhone Number:\n316-828-6060\nSubject: RE: Question: Use of Tank Cars;\nCorbin\nDate:\nTuesday, January 13,2004\n$/73.31\n• Pages:\n2\nTank Cars\nCan you advise when you expect to respond to the below request?\n-----Original Message--\n040008\nSent:\nFrom:\nNowicki, Steve\nSubject:\nTo:\n'Office of Hazmats; DHM-10'\nMonday, December 22,2003 10:12 AM\nRE: Question: Use of Tank Cars; Examination before shipping\nThe below request was faxed to DHM-10 on December 8th. Have you had a chance to consider this request?\nFrom:\n----Original Message-..\nSent:\nMonday,December 08,2003 12:10 PM\nNowicki, Steve\nTo:\nSubject: Question: Use of Tank Cars; Examination before shipping\n\"infocntr@rspa.dat.gov'\nKoch Hydrocarbon LP (KHLP) has 3 questions with respect to the requirement in 49 CFR part 173.31 (d)\nand its applicability to a specific situation we encountered. The questions are identified at the end of this\nhazardous material or a residue of a hazardous material unless that person determines that the tank car\nThe requirement: 173.31 (d) says: (1) No person shall offer for transportation a tank car containing a\ntransportation must perform an external visual inspection that includes:\nis in proper condition and safe for transportation. As a minimum, each person offering a tank car for\npiping, valves,...\nshell and heads..\nmissing bolts...\nprotective housings...\npressure relief...\nthermal protection\nrupture discs...\nmarkings\ninspection date.\n•Gas, Liquefied (Propylene), 2.1, UN1075\" sitting idle in Superior, WI for about 6 weeks. These tank cars\nThe situation: KHLP had 5 KHLP full service leased tank cars of \"Residue: last contained Petroleum\nwas discharged in Conway, KS. Due to market demand fluctuations, it was decided that these 5 cars\nhad returned empty to the loading facility in Superior under a typical empty bill of lading after the product\ntheir serving carrier, the BNSF, without a bill of lading provided to the BNSF as there was no known\nwere no longer needed in Superior, and as a result they were \"released\" by the Superior facility back to\ndisposition on the cars at that time. KHLP ultimately decided on a next loading point for these 5 cars and\n\n<<<PAGE 4>>>\n\nDato: 01/13/04\nTime:\n01: 12\nPM\nTo: Office of Hazmats; DHM-10 | 1-202-366-3012\nRBS, LP\nPage: 002-002\nrequiring KHLP to submit billing. Prior to billing the cars, KHLP questioned: a) whether we should\nasked the Superior facility to bill the cars to that point. However, the facility refused to do so, thus\nto examine the railcars to meet the requirements of 173.31 (d), or conversely, if the facility ir\nnspect these cars to reduce the risk of a problem enroute; and b) whether we had a responsibility\nfurther wondered if the last party to have examined the cars to meet the requirement in 173.31 (d)\nSuperior had a duty to do the same prior to them having \"released\" the cars to the BNSF. We\nwas sufficient evidence that the empty cars were safe for transportation.\nThe resolution: KHLP decided to physically examine the 5 cars to reduce the risk of a problem\nenroute and, as the current offeror of these cars; to meet what we thought was our duty outlined in\n173.31 (d). We then empty billed the cars to their destination.\nQuestions: Given the situation noted above:\n1. Did KHLP have a duty to physically inspect the railcars to meet the requirements of 173.31 (d)?\nto 173.31 (d) before \"releasing\" them to a railroad without billing?\n2. Hypothetically, would the Superior facility have a duty to physically inspect the railcars according\nas the most current offeror of the empty tank cars\n3. If the Superior facility did physically inspect the cars, would KHLP also have to inspect the car:\nThank you in advance for your consideration. We look forward to your reply.\nDirector of Transportation Compliance\nStephen P. Nowicki\nKoch Mineral Services, LLC\nPhone: 316-828-7217\n4111 East 37th Street North, Wichita, KS, 67220\nFax: 316-529-6165\nEmail: nowickis@kochind.com","truncated":false,"body_characters":7905}