DuPont SHE Excellence Center — Hazardous Materials Safety Interpretation

Page 1JAN 3 2006 Ms. Cherry Burke Ref. No. 05-0295 Distribution Safety Consultant DuPont SHE Excellence Center DuPont Building 6096 1007 Market Street Wilmington, DE 19898 Dear Ms. Burke: This is in response to your November 18, 2005 letter requesting clarification regarding the attendance requirements for cargo tanks specified under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). In your scenario, transportation has ceased, the cargo tank has been placed on consignee's property, and the motive power has been removed. Specifically, you ask if the cargo tank attendance requirements in § 177.834(i) are applicable to a cargo tank that is loaded under the conditions in this scenario. The answer is no. A pre-transportation function as specified in the HMR is a function required to assure the safe transportation of a hazardous material in commerce. Each shipper of a hazardous material must comply with applicable HMR requirements concerning compatibility of the lading with the packaging, outage and filling limits, securing of valves and closures, venting, and similar provisions. The attendance requirements in § 177.834(i) apply to loading and unloading operations performed by the carrier. Therefore, a shipper who loads a cargo tank prior to the onset of transportation in commerce (i.e., the arrival of the carrier and the attachment of motive power) is not subject to the attendance requirements in § 177.834(i). I hope this information is helpful. Sincerely, Hott Hattie L. Mitchell, Chief Regulatory Review and Reinvention Office of Hazardous Materials Standards 177.834(0) 050295#

Page 2File: Cargo Tank Loading Attendance Mr. Edward Mazzullo U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration Office of Hazardous Materials Safety 400 7th St., S.W. Washington, DC 20590 REQUEST FOR INTERPRETATION CONCERNING USE OF REMOTE VIDEO SURVEILLANCE TO OBSERVE CARGO TANK LOADING OPERATIONS Dear Mr. Mazzullo: With the enacting of HM-223, questions have arisen concerning the need for physical attendance within 25 feet of a cargo tank being loaded with regulated hazardous materials. Prior to HM-223, at least 2 published interpretations from the Office of Hazardous Materials Standards (attached) made it clear that under certain circumstances - namely when the carrier's obligation for transportation has ceased, the cargo tank has been placed on the consignee's property, and the motive power removed - the cargo tank was no longer considered to be in transportation, and therefore the attendance rules in 49 CFR 177.834 did not apply. With HM-223, the regulations changed to define the loading of a cargo tank as a "pre-transportation function," to which the HMR do apply. Question 1. Under the current regulations, does a cargo tank being loaded under the circumstances described above (i.e. when the carrier is not present or involved, and the motive power has been disconnected and left the area need to be attended throughout the process by a qualified, alert person within 25 feet of the tank and having an unobstructed view of it? Question 2. If attendance is required, is the use of remote video surveillance in the control room an acceptable alternative to having a person within 25 feet of the tank? Our questions are raised for two reasons. Cargo tanks containing liquefied compressed gas can take upwards of 5 hours to load. Physical attendance during that entire tire period, particularly during inclement weather, places a new and burdensome requirement on an operation that previously was not subject to this requirement. Also, pre-HM-223, the tank car regulations had read such that the unloading of tank cars had to be attended by an unloader during the entire period of unloading and while the unloading connections were intact. A number of formal and informal interpretations were issued by the Office of Hazardous Material Standards and the#

Page 3the material being unloaded; 2) The employee responsible for unloading was instructed in the procedures to be followed during unloading and in the event of an emergency, and had the authority and ability to halt the flow of product immediately and take emergency action; 3) In the event of an emergency, the system was capable of immediately halting the flow of product or alerting the employee responsible for unloading; 4) The monitoring device provided immediate notification of any malfunction to the person responsible for unloading, or the device was checked hourly for malfunctions; and 5) In case of a malfunction, the device would no longer be relied upon and instead the individual responsible for unloading would constantly observe the unloading. (The use of remote observation through signaling systems and video surveillance has now been incorporated into the tank car unloading regulations that apply to transloading operations.) An interpretation that remote observation of cargo tank loading is permissible - under these same conditions that were acceptable for tank car unloading - would help to relieve the regulated community of this new and burdensome requirement, while still providing an equivalent level of safety. Again, we are seeking this interpretation of the regulations as they apply when the carrier's obligation for transportation has ceased, the cargo tank has been placed on the consignee's property, and the motive power removed. Your assistance in clarifying these issues is most appreciated. Sincerely, Cheryl A. Burke Cheryl A. Burke Distribution Safety Consultant Safety, Health, and Environmental Excellence Center, DuPont Building 6096 ph: 302-774-2778; fx: 302-351-4111; e-mail: cherry.burke@usa.dupont.com#

Page 4Ladies 177834interp.pdf 177834interpa.pdf (67 KB) (165 KB) Request for interpretation - please take appropriate action. -----Original Message-- - - - From: Cherry Burke [mailto:Cherry.Burke@USA.dupont.com] Sent: Friday, November 11, 2005 3:31 PM To: Mazzullo, Ann <PHMSA> Subject: Question Know this isn't your area, but to whom do I write to request a formal DOT interpretation? Do I need to send it through paper mail, or can I e-mail it to whomever you indicate? could you forward this note on? issuance of HM-223 as a final rule. The cargo tank motor vehicle loading attendance regs have changed somewhat with the Previously, DOT had published letters of interpretation that basically said that attendance requirements did not apply for loading and unloading when the carrier's obligation for the transportation had ceased, the cargo tank was placed on private property, and the motive power disconnected. I've attached those below. The logic was that under these circumstances, the cargo tank was not in transportation. The new regulations - which indicate that loading is a pre-transportation function and the HMR apply - make the previous interpretations invalid. Since the current regs would now require attendance by having a qualified person within 25 not of the ago ten moved tell ike toe a a formal ligation ats deeded ther eet of the cargo tank video monitoring would be an acceptable alternative for loading attendance under these circumstances. Some years ago, the FRA issued an interpretatation that remote video monitoring (with certain caveats) was acceptable for attending tank car unloading. I'm hoping for the same with cargo tank loading. Thanks very much - Cherry (See attached file: 177834interp.pdf) (See attached file: 177834interpa.pdf) (See scenario 2, question 3) This communication is for use by the intended recipient and contains information that may confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and consoicuousl lesignated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for ransfers of data to third parties.#

Page 5FER 1 3 1998 Mr. Dana Murphy Vice President West Central Environmental Corp. Post Office Box 83 Rensselaer, NY 12144 Deat Mr. Murphy: This is in response to your letter of December 5, 1997, concerning the status of a cargo tank which has been separated from its tractor. Specifically you asked if a cargo tank, located on private property with the motive power removed from the property, is subject to the attendance requirements of the Hazardous Materials Regulations (§ 177.834(i)) as it is loaded or off-loaded over a period of 12 to 48 hours. "Transportation," as defined in § 5102 of the Federal hazardous material transportation law (49 U.S.C. 5101-5127), is any movement of property by any mode, and any loading, unloading, or storage incident to the movement. As applicable to the attendance requirements, highway transportation of a cargo tank ceases when: (1) The carrier's obligation for transporting the materials is fulfilled; (2) The cargo tank has been placed upon the consignee's premises; and (3) The motive power has been removed from the trailer and removed from the premises (§ 177.834(i)(2)). A tank removed from its motive power on private property is not considered in transportation and not subject the attendance requirements when the above conditions have been met. For information concerning the Federal Motor Carrier Safety Regulations in 49 CFR Parts 300- 399, please contact the Federal Highway Administration's Office of Motor Carriers at (202) 366-1790. I hope this answers your inquiry. If we can be of further assistance, do not hesitate to contact us. Sincerely, Nilo Delmer F. Billings Chief, Regulations Development Office of Hazardous Materials Standards#

Page 6518-272-6891 N.T.S. Waste Haulers #4A-100/ Grand Island, NY 716-775-3335 FAX COVER SHEET TAX#: (518) 272-0108 # OF PAGES INCLUDING COVER SHEET: TO: Michael JohNsEN FROM: DANA MuRPhY DATE: 12/5/97 TIME: RE: CFR 49 SubpART B 177.834(1)()(2)(3) 4(4) MR. Johnsen Is A SemiTRailer chego TANK which hAs beEN SpoTTed ON pRIvATe PRoperTy (SeperaTed FRom iTS TRACTOR) STill Regulated by The above mentioned prets ANdloR oTher - FMESR while londiNg oR oFFlOAdiNg HAZARdOUS MATerIAlS. Specifically if such Loading an offleading wAs To OccouR over AN extended period Of Time, SAY I2 To 48 hes? RespectFully ЗанА пикрас ICE PRESIdENT LE YOU DO NOT RECEIVE ALL PAGES TRANSMITTED, PLEASE NOTIFY MF IMMEDIATELY AT (518) 272-6891.#

Page 7Mr. Phil Stewart Dow Chemical Canada, Inc. Ref. No. 00-0132 1425 Vidal Street South Sarnia, Ontario CANADA N7T 8C6 Dear Mr. Stewart: This is in response to your request concerning the attendance requirements for loading and unloading of a cargo tank motor vehicle under 177.834(i) of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Your questions are paraphrased and answered as Scenario 1: A cargo tank arrives at our unloading rack. The motive power remains connected. The cargo tank is unloaded into a storage tank, tank farm or processing unit by our plant personnel. Is the cargo tank considered to be "in transportation"? If so, do all the unloading attendance requirements apply, including the requirement that personnel remain within 25 feet of the tank during the entire offloading operation? A1. Yes, if the carrier's obligation to transport the hazardous material is not yet fulfilled, the cargo tank is still "in transportation." All unloading requirements of the HMR apply. As provided by § 177.834(i)(2), a carrier's obligation to ensure attendance during unloading ceases, and transportation ends, when: (1) the carrier's obligation for transporting the material is fulfilled; (2) the cargo tank is placed on the consignee's premises; and (3) the motive power has been removed from the premises. Because the unloading is regulated under the HMR, due to the carrier's continuing presence, facility personnel must comply with the applicable unloading in § 177.834. As provided by § 173.30, a person wh unloads hazardous materials from a cargo tank motor vehicle must comply with the applicable unloading requirements of Part 177; i.e., § 177.834. Therefore, under scenario 1, plant personnel who perform the unloading function must comply with the attendance requirements in $ 177.834. You provided other alternative scenarios, some where the motive power remained and some where the motive power was removed. If the carrier has no further obligation, as determined under § 177.834(i)(2), then the attendance requirements do not apply to anyone. If the carrier still has an obligation, the attendance requirements then apply to whoever unloads. 177.834 000132 -#

Page 8A2. Yes. As provided by § 177.834(i)(1), a cargo tank must be attended by a qualified person at all times when it is being loaded. The person who is responsible for loading the cargo tank is also responsible for ensuring that it is attended. A person is "qualified" if he has been made aware of the nature of the hazardous material which is to be loaded or unloaded, he has been instructed on the procedures to be followed in emergencies, he is authorized to move the cargo tank, and he has the means to do so. (See § 177,834(i)(4)). Q3. Is the tank considered to be "in transportation" if the motive power is removed? A3. No. A cargo tank removed from its motive power on private property is not considered to be in transportation. Therefore, if a motor carrier delivers a cargo tank to a shipper, disconnects the motive power and leaves the premises, the person loading the cargo tank is not responsible for ensuring attendance as provided by § 177.834(i)(1). You also stated that your plant sites have no public access and that the loading and unloading racks have fully automated electronic monitoring capabilities that can be controlled from control rooms and that can be manually operated if the automated process malfunctions. The HMR currently do not provide for the use of an automated monitoring system, in lieu of direct human intervention, for the loading and unloading of cargo tanks in transportation. However, you may wish to seek authorization to use an automated monitoring system by submitting an application for exemption in accordance with the procedures in § 107.105. I have enclosed for your information copies of three Federal Register publications on the attendance requirements. I hope this information is helpful. Sincerely, Hotte r. Michell Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Standards Enclosures#

Page 9To: U.S. Department of Fax: (202) 366-3012 Transportation From: Phil Stewart Date: 28/04/2000 Re: Loading/Unloading Pages: 2 Requirements CC: Urgent, For Review Please Comment X Please Reply Please Recycle Notes: To Whom It May Concern: Altached is a document I sent via your web page carlier today. I received a phone this alturnoon stating that I was required to fax this request to your department if I a written response to iny questions is required. In light of this, would you please revlow and send me a written response of interpretation or ruling to the questions listed and sent a reply back to the above mentioned address. Thanks, Phil Stewart Phil Stewart: 1=. •72 ir page! ... • 28/04/00 ..2L ..:#

Page 10message_lype: Other comments: Would you please provide your interpretation or ruling with regards attendance requirements as stipulated in 177.834 (i)(I) & (2), 10 the following Loading/Unloading situations I have provided below. Preamble All of our plants sitos are controllod facilities. This means there is no public accoss. Londing/Unloading racks have automated clectronic monitoring capabilities and controlled via a control rooms. We also have tho ability to manually operate these racks if the event our allomated process malfunctions. All our loading/unloading racks or areas are designed for full contaimnent should a spill occur including deluge systems should a fire occur. Our plant personnel are qualifled and trained on the material they are working with as well as the operating procedurcs. Situntion #1 Cargo tank arrives at unloading rack. Motive of power remains hooked up. The tank will he offloaded into a storage tank or tank farm by our plant personncl. Is this tank considered to be "Tn Transport"? If so, do all the unloading attendance requirements apply as stipulated including our personnel lo be within 25' of the tank during the cntire offloading operation? Situation #2 Cargo tank arrives at unloading rack. Molive of power is removed and carrier Icaves. The tank will be offloaded into a storago tank or tank farm by our plant personnel. Is this tank considered to be "In Transport"? IF so, do all the unloading attendance requirements apply as stipulated including our personnel to be. within 25' of the tank during the ontire offloading operation? Situation #3 Cargo tank arrivos at unloading rack. Motive of power remains hooked up. The tank will be offloaded directly into our processing unit by our plant personnel. Is this tank considered to be "In Transport"? If so, do all the unloading attendance requirements apply as stipulated including our personnel to be within 25' of the tank during the entire ofloading opcration? Situation #4 Cargo tank arrives at unloading rack. Motive: of power is removed and carricr leaves. 'The tank will be offloaded dirctly into our processing unis why our plant personnol. Is this tank considered to bo "In Transport"? If so, do all the unloading. allendanco requirements apply as stipulated including our personnel to be within 25' of the tank. during the entire offloading opcration? Situation #5 Gargo tank arrives at loading rack. The motive of power remains hooked up. The tank will be loaded from our storage tanks by our plant personnel. Is this tank considered to bo "In Transport"? If so, do all the loading attendance requirements apply as stipulaled. Is our personnel who will be loading this tank icquired to be within 25' of the tank during the entire loading period or what docs attended by a qualified porson at all times when the tank is being loadod mean? Situation #6 Cargo tank arrives at loading rack. The motive of power is removed and co cadred a be i ransport be so d al the lording and e eric men ali trie tipulated? Is our plant personncl who will be loading this tank required to be within 25' of the tanl furing the entire loading poriod or what does attended by a qualified person at all times when the tank. is being loaded moan? I apologize for such a wordy document, but I wanted to capture as many of the various typos of loading/inloading situations that do occur and to obtain a complete an answer as organization: Dow Chemical Canada Inc. phone: (519) 339-5047 http://hazmat.dot.gov/cgi-bin/formmail.pl 04/28/2000#