National Tank Truck Carriers, Inc. — Hazardous Materials Safety Interpretation

Page 1400 Seventh Street, S.W. Washington, D.C. 20590 Pipeline and Hazardous Materials Safety Administration JUL 24 2007 Mr. Thomas P. Lynch National Tank Truck Carriers, Inc. Ref. No. 07-0131 2200 Mill Road Alexandria, VA 22314 Dear Mr. Lynch: This is in response to your June 28, 2007 letter requesting clarification of the hazardous materials incident reporting requirements under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you request clarification concerning incidents that are excepted from reporting requirements under § 171.16(d). There are three separate exceptions from the incident reporting requirements. As specified in § 171.16(d), unless a telephone report is required under § 171.15, the incident reporting requirements do not apply to any of the following: 1) A release of a minimal amount of hazardous material from a vent, for materials for which venting is authorized; the routine operation of a seal, pump, compressor, or valve; or connection or disconnection of loading or unloading lines, provided that the release does not result in property damage (See § 171.16(d)(1)). 2) An unintentional release of hazardous material when the material is properly classed as ORM-D or as a Packing Group III material in Class or Division 3, 4, 5, 6.1, 8, or 9; kg (66 pounds) for solids; the total aggregate release is less than 20 liters (5.2 gallons) for each package has a capacity of less than 20 liters (5.2 gallons) for liquids or less than 30 liquids or less than 30 kg (66 pounds) for solids; and the material is not offered for material (See $ 171.16(d)(2)). transportation or transported by aircraft, a hazardous waste, or an undeclared hazardous 3) An undeclared hazardous material discovered in an air passenger's checked or carry- on baggage during the airport screening process (See § 171.16(d)(3)). The text for exceptions from reporting in the current Guide for Preparing Hazardous Materials Incidents Report (PHH50-0038-0604) may be misleading. We will address 171.16 (d) 070131#

Page 2confusion presented by the guidance by clarifying the language in the guide to indicate the three options that are available. I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, Chief, Standards Development Office of Hazardous Materials Standards#

Page 3Der Kinderen 5171-16 (d Incidents Reports Exceptions 07-0131 NTTC NATIONAL TANK TRUCK CARRERS June 28. 2007 Mr. John Gale Pipelines and Hazardous Materials Administration U.S. Department of Transportation 1200 New Jersey Ave. SE Washington, DC 20590 RE: 49 CFR 171.16(d) Exceptions to Hazmat Spill Reporting Requirements Dear Mr. Gale: Confusion regarding the Sec. 171.16(d) exceptions criteria from the hazmat spill reporting requirements exists. This confusion arises out of an apparent discrepancy between the actual language of the regulation and guidance language that PHMSA has provided. The regulatior seems to indicate that an exception is triggered when any one individual stipulated condition i met; however, rulemaking preamble language and a PHMSA guidance document seem to suggest that an entire series of conditions must be met for the exception to apply. The use of the plural word incidents in Sec. 171.16(d) would seem to suggest that none of the different possible incidents noted under Sec. 171.16 (d)(1). (d)(2) or (d)(3) requires reporting. Sec. 171.16(d) states: provisions of Sec. d) Exceptions. Unless a telephone report is required under the (a), (b), and (c) of this section do not apply to the following 171.15 of this part, the requirements of paragraphs incidents (emphasis added): (1) A release of a minimall (i) A vent, for materials for which venting is authorized; amount of material from-- or (ii) The routine operation of a seal, pump, compressor, or valve; provided that the release does not result ir property damage. (iii) Connection cr disconnection of loading or unloading lines, (2) An unintentional release of hazardous material when: (i; The material is properly classed as-- (A) ORM-D; or 8, o= 9; (B) a Packing Group III material in Class or Division 3, 4, 5, 6.1, gallons! for liquids or less than 30 kg (66 pounds) for solids; and (iv! The material is not-- (A) Offered for transportation or transported by aircraft,#

Page 4(B) A hazardous waste, or (3) An undeclared razardous material discovered in an air (C) An undeclared hazardous material. process. (For discrepancy reporting by carriers, see Sec. passenger's checked or carry-on baggage during the airport screening this subchapter.) 175.31 of However, in the preamble to the rulemaking that established the current Sec.171.16(d) (See 68 Federal Register 67745, 67751 (December 3, 2003)), PHMSA offers guidance on when reporting is not required by saying: As proposed in the NPRM, an incident (emphasis added) meeting all (emphasis added) of the following criteria would not be required to be reported: (1) The shipment has not been offered for transportatior or (2) None of the criteria in Sec. 171.15 (a) apply; (4) The material is properly classed as-- (3) The material is not a hazardous waste; 6.1, 8, or 9; i (ii) A Packing Group III material in Class or Division 3, 4, 5, gallons) for liquids or less than Each package has a capacity 30 kg (66 pounds) for solids; of less than 20 liters (5.2 (6) The total aggregate release is less than 20 liters (5.2 gallons) for liquids or less than 30 kgs The material does not meet the definition of an undeclared (66 pounds) for solids; and hazardous material In this instance, the singular number of incident, combined with the modifier all for the provided hat in as idell am the use of the cor ouchen avid at thierid of subpar graph as anem to sugges riteria as well In addition, a January 2004 PHMSA Guidance Document, Guide for Preparing Hazardous Materials Incident Reports, repeats the Preamble language and appears to indicate that each one of the listed criteria must be present for the exception to apply. Standards of regulatory construction would lead the reader to rely on the regulatory language and not to depend on the guidance language. standard both ways. especially because of the January 2004 Guidance Document. However, industry personnel are interpreting the For this reason. NTTC urges PHMSA to issue an interpretation that will eliminate confusion. If search of PHMSA interpretations did not resolve the matter, and we aver that confusion still PHMSA has previously addressed this discrepancy, we apologize for revisiting it. An online exists in industry. Your guidance in this matter is greatly appreciated. Sincerely, /sl Vice President and General Counsel Thomas P. Lynch 2#