{"operation":"document","citation":"06-0146","title":"State of New Jersey Department of Environmental Protection — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2006-08-21","effective_on":null,"summary":"06-0146 response to State of New Jersey Department of Environmental Protection concerning 171.1, 171.16.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-06-0146.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-06-0146.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-06-0146","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2006/060146.pdf","body":"<<<PAGE 1>>>\n\nf Transportatio\n.S. Departmen\n400 Seventh Street, S.W.\nWashington, D.C. 20590\npaterials Sorely Administration\nAUG 21 2006\nMr. Robert Gomez\nRef. No. 06-0146\nSupervisor, Transport Oversight Unit\nState of New Jersey\n300 Horizon Center\nDepartment of Environmental Protection\nTrenton, NJ 08625-0407\nDear Mr. Gomez:\nThis is in response to your June 20, 2006 letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CPR Parts 171-180). Specifically, you seek guidance on\nof sift proof, closed bulk containers. You provided several scenarios and questions based\neporting of hazardous materials incidents, the general packaging requirements and the us\non these scenarios. The scenarios and your questions are paraphrased and answered as\nfollows:\nA carrier transports hazardous waste via truck to a transloading facility. The hazardous\nhazardous waste manifest.\nwaste is transferred to a lined rail car for transport to a disposal facility designated on the\nScenario A: A carrier transports contaminated soils described as \"RQ Hazardo as waste,\nsolid, n.o.s., (cadmium, lead), 9, NA3077, PG III\" via truck in a non DOT spec fication sift-\nUpon arrival at the transloading facility the driver discovers what appears to be a release of\nproof closed vehicle or a non DOT specification closed bulk bin to a transloading facility.\nhazardous waste from the rear dump gate.\nQ1: Does this release require an incident report under § 171.16? If an incident report is\nrequired, who is responsible for completing and submitting the incident report?\nand during the transfer from the truck to the lined rail car. Provided the material observed\nAl: The shipment appears to be in transportation when it arrives at the transloading facility\nwith § 171.16. As specified in § 171.16(a)(2), each person in physical possession of a\ns hazardous waste leaking from the package this incident must be reported in accordance\nhazardous material when an unintentional release of a hazardous material or the discharge\nof any quantity of hazardous waste occurs must submit a Hazardous Materials Incident\n111.1\n141.16\n060146\n\n<<<PAGE 2>>>\n\nQ2: Does the non-DOT specification closed transport vehicle or freight container meet the\ngeneral packaging requirements of § 173.24 despite an apparent release of hazardous\nwaste?\nA2: You did not provide sufficient information about the condition of the closed transport\nvehicle or freight container for us to determine how the hazardous waste was released.\ncontainment for contaminated soil at the time of shipment and will continue to provide that\nHowever, it is the shipper's responsibility to ensure that the packaging provides sift-proof\ncontainment until the package reaches its final destination.\nis transloaded via gravity from an authorized non-DOT specification transport vehicle or\nScenario B: The \"RQ Hazardous waste, solid, n.o.s., (cadmium, lead), 9, NA3077, PG III\"\neioht container into a lined rail car. In your letter, you state that during the transloadin\nrocess. hazardous waste splashed onto the inside walls of the transfer building and ont\nblowing through the building during the transloading operation may carry hazardous waste\nthe paved surface directly under the transport vehicle or freight container. Further, air\nparticulates and dust beyond the confines of the rail car and beyond the confines of the\ntransfer building. In your letter, you note carrier personnel are present and participated in\nthe transloading operation.\nrequired, who is responsible for completing and submitting the incident report?\nQ3: Does this release require an incident report under § 171.16? If an incidert report is\nA3: Transloading operations occurring at a truck-to-rail transfer facility are in\ntransportation and are functions subject to regulation under the HMR (see § 171.1(c)). A\nrelease of hazardous waste that occurs during a transloading operation requires an incident\ntransported the material is observing or participating in the transloading operation must be\nreport under § 171.16. A hazardous materials incident that occurs while the carrier that\nreported by the carrier, because the carrier is deemed to be in possession of the hazardous\nwaste at that point.\nrequire a Hazardous Materials Incident Report on DOT Form F5800.1? If a Hazardous\nQ4: Would hazardous waste particulate matter observed exiting the transfer building\nMaterials Incident Report is required, who is responsible for completing and submitting the\nincident report?\nA4: An incident report is required for an unintentional release of hazardous material or the\ndischarge of any quantity of hazardous waste during transportation (see answe: 1). A\nhazardous materials incident that occurs while the carrier that transported the raterial is\nobserving or participating in the transloading operation must be reported by the carrier\nbecause the carrier is deemed to be in possession of the hazardous waste at that point (see\nanswer 3).\nScenario C: According to your letter, once the lined rail car is filled, the liner is closed and\nsecured by tying. You note the rail car is not covered with a tarp and weep holes remain\nopen to allow rainwater to exit the rail car. You further note sharp rocks or other objects\n\n<<<PAGE 3>>>\n\nfalling into the lined rail car may damage the liner in the rail car and affect its integrity.\nunder the rail car.\nYou have provided video evidence showing a patch of unknown brown material directly\nshould the rail car be covered with a tarp and the weep holes closed to ensure compliance\nQ5: Because it is impossible to determine if the liner inside the rail car has been punctured,\nwith $ 173.24?\nprovides sift-proof containment at the time of shipment and will continue to provide that\nA5: In accordance with § 173.22, it is the shipper's responsibility to ensure that the package\ncontainment until the package reaches its final destination. A shipper may utilize any\nappropriate method to ensure compliance with § 173.24.\nQ6: Based on a review of the available evidence, please provide advice of the compliance\nstatus of the lined rail car with applicable sections of the HMR.\nstatus of the lined rail car. You have not provided evidence that a release of hazardous\nA6: The evidence you provided does not permit us to render an opinion on the compliance\nwaste occurred, nor have you provided definitive evidence that the rail car fails to meet the\nrequirements of 8§ 173.24 or 173.240.\nrail car. Does this observation constitute an incident requiring a hazardous materials\nQ7: A patch of brown material is observed directly under an open weep hole of the loaded\nincident report? If an incident report is required, who is responsible for completing and\nsubmitting the report?\nA7: Provided the material observed under the rail car is hazardous waste leaking from the\nsubmitted within 30 days (see answer 1). If the incident occurs while the carrier that\npackage, a Hazardous Materials Incident Report on DOT Form F5800.1 is required to be\nthe carrier is deemed to be in possession of the hazardous material at that poin: and\ndelivered the hazardous material is observing or participating in the transloading operation\naccordingly, must report the incident (see answer 3).\nI hope this information is helpful. Please contact us if you require additional assistance.\nSincerely,\n~ Director\nEdward T. Mazzul\nOffice of Hazardous Materials Standards\n\n<<<PAGE 4>>>\n\nJon S. Corzine\nState of Neta Jersey\nGovernor\nDEPARTMENT OF ENVIRONMENTAL PROTECTION\nLisa P. Jackson\nCommissioner\nTRENTON NO 03625.0407\nLeary\n§171.16\nRETURN RECEIPT REQUESTED\nCERTIFIED MAIL\n§ 171 |\n7005 0390 0001 8555 4569\nTank Cars\nJune 20, 2006\n06-0144\nSusan Gorsky, Regulations Officer\nOffice of Hazardous Materials Safety\nPHH-10\n400 7* Street, S.W.\nWashington, DC 20590-0001\nRe: Regulatory Guidance\nDear Ms. Gorsky:\nto 49 C.F.R. 171.16; (2) closed & sift-proof non-specification packages authorized at 4S C.F.R.\nI am seeking formal regulatory guidance in the following areas: (1) release reporting, pursuant\n173.240; and (3) general packaging standards pursuant to 49 C.F.R. 173.24. This request is\nbased on observations during a joint inspection of a truck to rail transfer facility conducted by\nNew Jersey Department of Environmental Protection (\"NJDEP\") and an inspector from the\nUnited States Department of Transportation (\"USDOT\"), Pipeline and Hazardous Materials\nSafety Administration (\"PHMSA\"). As you are probably aware, NJDEP is currently in litigation\nin federal court for the District of New Jersey with NYSW regarding this facility, Civil Action\nNo. 05-4010 (KSH). To assist your review, I have attached photographs (referred to as \"Photo\nNo.\") and video clips (referred to as \"Video No.\") that were taken during a recen joint\ninspection of the facility.\nAs context for the questions that follow, please be advised of the following pertinent background\ninformation. Also, throughout this letter, \"hazardous waste,\" \"waste,\" and \"hazardous material\"\nare used interchangeably.\nThe first is a description of the relevant parties during the actual physical transfer of the\npicks up the hazardous waste from the Generator and arrives at the facility, where the hazardous\nhazardous waste. Typically, and on the date of the inspection, a truck transporter (\"Trucker\")\nmaterial is transferred to the rail transporter (\"Rail Carrier\") for transport to the disposal\ndestination designated on the hazardous waste manifest. Upon arrival at the facility, Trucker is\nmet by the shipper of the waste (\"Shipper\"), whose name appears on the waybills, who receives\nthe freight bills for the rail shipments, and who has contracted with Rail Carrier to ship materials\n\n<<<PAGE 5>>>\n\n2\nfacility, whom Rail Carrier hired to perform loading services and other administrative duties.\nthrough and has exclusive use of the facility; and the designated loading entity ( Loader\") at the\nfree-falling into the rail car, is overseen by Trucker, Shipper and/or Loader.\nThe actual physical transfer of the waste from truck to the open rail car, i.e., when the waste is\nThe second relates to the actual transfer itself. The soils received at the facility during the joint\ninspection were DOT/RCRA regulated contaminated soils described as a \"RQ, Hazardous\nWaste, Solid, N.O.S. (Cadmium & Lead), 9, NA3077, PGIII.\" The soils were transferred from a\nnon-Specification dump truck into a lined rail gondola. To aid in the transfer, plastic sheeting\nlined the dump truck, but did not fully contain the waste during the transfer.\nScenario A:\nspecification closed bulk bin (intermodal or rolloff container) arrived at the transloading facility.\nTrucker, via a non-specification sift-proof closed vehicle (dump truck), or sift-proof non-DOT\nthe facility, he noticed what appeared to be a minor release of hazardous waste that had seeped\nAs the driver exited his vehicle with his hazardous waste manifest in hand to confirm arrival a\nout of the rear dump gate in the parking lot. See Photo Nos. DSC00062, DSC00063, and\nDSC00064.\nQuestion #1:\nDoes the hazardous material observed under the dump gate on the dump truck constitute\nreportable incident, pursuant to 49 C.F.R. 171.16? If yes, if it is not the responsibility of\nTrucker to file the necessary report, whose responsibility is it?\nQuestion #2:\nDoes the non-DOT specification dump truck identified in Photo Nos. DSC00062,\nand requirement of being a sift-proof, closed vehicle, 49 C.F.R. 173.240(b), even though\nDSC00063, and DSC00064, meet the general packaging standards under 47 C.F.R. 173.24\nsome waste material has seeped out?\nScenario B:\nThe authorized non-specification dump truck, intermodal or rolloff container, 49 C.F.R. 173.240,\nbacked up the ramp above the rail gondola. See Photo No. DSC00076. Shipper and/or Loader\nfrom the vehicle into the lined rail gondola by gesturing to the vehicle driver, Trucker, to alert\nwas present during the transfer and helped control the rate at which the waste was transferred\nthe driver when it was okay to dump the load and when the driver should slow the dump. See\nVideo MOV01810.\nintermodal or rolloff container, the hazardous material splashed onto the inside walls of the\nAt times during the transfer, as the hazardous material was falling out of the dump truck.\ntransfer building, see Photo Nos. DSC01776, DSC01781, and DSC01779; the outside of the rail\ngondola, see Photo Nos. DSC00096 and DSC01794, where the black tarp is splattered with mud\nand/or waste; and on the paved surface directly under the dump truck, interrodal or rolloff\ncontainer, see Photo Nos. DSC00091 and DSC00094. At the time of these photographs, Shipper\n\n<<<PAGE 6>>>\n\n3\nand/or Loader had already begun hosing the waste on the paved surface into the steel chute\nabove the rail gondola and into the rail gondola.\nQuestion #3:\nreportable incidents under 49 C.F.R. 171.16? If yes, (a) who is deemed 1o have physical\nAre the releases of waste identified in the photographs referenced above in scenario B,\npossession of the hazardous material?; and (b) who is responsible for reporting the\nincidents): Trucker, Shipper, Loader and/or Rail Carrier?\nScenario C:\nThe design of the building is such that the transfer of waste from the vehicle into the rail gondola\nthat are used as a doorway along both ends of the building, and a large opening where the vehicle\noccurs within seven to ten feet from the one end of the building. There are plastic freezer strips\nbacks slightly into to dump its load. See Photo No. DSC00076 to view where the truck and rail\ngondola are in relation to each other, and Video Nos. MOV01815 & MOV01810 to see how air\nblowing through the building can carry hazardous waste particulate and/or dust out beyond the\nconfines of the rail gondola.\nQuestion #4:\nDuring the transfer of waste from the vehicle to the rail gondola, visible hazardous material\nCarrier?\n(b) who is responsible for reporting the releases): Trucker, Shipper, Loader and/or Rail\nScenario D:\nfrom several truckloads of waste, the liner is closed up like a burrito and tied shut. See Photo\nOnce the lined rail gondola, i.e., a non-specification package, has been filled with the contents\npasses over it, no contamination is released as the rainwater exits the gondola on to the ground\nthrough open weep holes.\nThe concern is that during loading, the integrity of the non-Specification liner along the bottom\napproximately eight feet. See Video No. MOV01810, which allows you to hear hard objects\nof the rail gondola becomes compromised due to sharp rocks or objects falling from a height of\nfalling into the rail gondola; at the one minute, eight second mark, a large slug of waste falls out\nPhoto No. DSC00093, which shows how sharp some of the rocks are that have fallen into and\nof the truck into the gondola hard enough to cause the rail gondolas to rock side to side. See\nagainst the liner in the gondola. The rail carrier is unable to confirm that waste containing sharp\n\n<<<PAGE 7>>>\n\n4\nrocks and objects, falling from a height of approximately eight feet, has not damaged the liner in\nthe rail gondola.\nEvidence that the liner in the gondola has been punctured is seen in Video Nos. MOV01796 and\nbrown material that looks like soil. The only place in the area of the gondola where soil-like\nMOV01797. Directly located under the open weep hole on the macadam surface is a patch of\nmaterial was seen was directly under the open weep hole.\nQuestion #5:\nBecause there is no way of determining whether the liner in the rail gondola becomes\nclosed in order to comply with the general packaging requirements, 49 C.F.R. 173.24, and\npunctured, should the gondola be required to be tarped or, at least, to have the weep holes\nensure the burrito style package is sift-proof and closed?\nQuestion #6:\nBased on your review of Video Nos. MOV01796 and MOV01797, please advise of the\nother HMR's.\ncompliance status of this rail gondola with 49 C.F.R. 174.3, 49 C.F.R. 173.240(a), and/or any\nQuestion #7:\nIs what appears to be a release from the rail gondola a reportable incident under 49 C.F.R.\n(b) who is responsible for filing the report: Trucker, Shipper, Loader and/or Rail Carrier?\n171.16? İf yes, (a) who is deemed to have physical possession of the hazardous material; and\nYour prompt attention to this request for written guidance would be greatly appreciated.\nIf you have any questions or require clarification on any of the items contained in this request,\nplease contact me at (609) 584-4227.\nSincerely,\nRobert Gomez, Supervisor\nTransportation Oversight Unit\nAttachments enclosed (compact disk)\nc. Regulatory file\n\n<<<PAGE 8>>>\n\nbc\nKevin Auerbacher, DAG w/o compact disk\nHarley Williams, DAG w/o compact disk\nJung Kim, DAG w/o compact disk\nJohn Castner, PE, Director w/o compact disk\nWolf Skacel, Asst. Commissioner w/o compact disk\nAnthony Lima, USDOT, PHMSA w/o compact disk (copied via e-mail)","truncated":false,"body_characters":16847}