{"operation":"document","citation":"08-0288","title":"Kaplan Kirsch & Rockwell LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-02-24","effective_on":null,"summary":"08-0288 response to Kaplan Kirsch & Rockwell LLP concerning 173.304, 174.67.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0288.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0288.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0288","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2008/080288.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\nFEB 2 4 2009\n1200 New Jersey Ave., SE\nWashington. DC 20590\nMr. Charles A. Spitulnik\nKaplan Kirsch & Rockwell LLP\n1 001 Connecticut Ave., NW\nWashington, DC 20036\nRef. No. 08-0288\nDear Mr. Spitulnik:\nThis responds to your November 14,2008 letter requesting clarification of our November 7,\n2008 letter (Ref. No. 08-0232) in which we discussed the applicability of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171 -1 80) to certain transfer operations. We\nstated that the conditions on delivery of a tank car containing a Class 3 (flammable liquid)\nmaterial set forth in 5 174.304 do not apply to the operation of a transloading facility on the\nproperty of a rail carrier where the lading is transferred directly from the rail tank car to other\npackaging, such as a cargo tank motor vehicle, for further transportation to its final\ndestination.\nYour inquiry relates specifically to the Van Dorn Yard in Alexandria, VA, owned by the\nNorfolk Southern Rail Company (NS), which is adjacent to the lines of, and served by, NS.\nWe understand that rail tank cars containing ethanol arrive at the Van Dorn Yard, where the\nethanol is transferred directly to cargo tank motor vehicles that transport the ethanol to the\npurchaser with no further involvement from NS. You indicate the waybills - which are\ngenerated by a rail carrier(s) to provide details and instructions of the rail transportation -\nidentify only the Van Dorn Yard as the destination of the shipment.\nThe Federal Railroad Administration reviewed the transfer operations at the Van Dorn Yard\nand advises that the original shippers' bills of lading -the underlying shipping documents\nthat identify the recipients of the shipment - clearly indicate that each rail tank car shipment\nis consigned to the company (i.e., the purchaser) to which the ethanol is ultimately delivered.\nBecause the companies purchasing the ethanol do not have rail service, RSI Leasing, Inc.\n(RSI) receives the shipments arriving at the Van Dorn Yard. RSI transfers the ethanol from\nthe rail tank cars to cargo tank motor vehicles and prepares shipping papers for the\nsubsequent motor vehicle transportation. These transfer operations meet the definition of\ntransloading in 5 171.8 of the HMR: \"the transfer of a hazardous material by any person\nfrom one bulk packaging to another bulk packaging . . .for the purpose of continuing the\nmovement of the hazardous material in commerce.\" We discussed transloading operations in\na recent rulemaking under Docket No. RSPA-98-4852 (HM-223), in which we established\n\n<<<PAGE 2>>>\n\nthat a \"transloading operation at an intermodal facility - i.e., the act of directly transferring\nhazardous materials from one bulk packaging to another - is a function that should be\nregulated under the HMR\" (68 FR 61906,61919; October 30,2003; see also 70 FR 20018,\n20020; April 15,2005).\nSpecific requirements in 8 174.67 apply to transloading a hazardous material from a rail tank\ncar to a cargo tank motor vehicle, including employee training; securing rail tank cars against\nmovement and preventing entry by other rail equipment; posting caution signs that\ntransloading is taking place; maintaining and implementing written safety procedures; and\nattending or otherwise continuously monitoring transloading operations by an employee who\nis familiar with the nature and properties of the hazardous material, is aware of the\nprocedures to be followed in the event of an emergency, and has the ability and authority to\ntake appropriate actions should an emergency occur. Additional requirements in 99 177.834\nand 177.837 apply to the operator of a cargo tank motor vehicle into which a hazardous\nmaterial is transloaded, including employee training and attending the cargo tank motor\nvehicle during operations. Moreover, both the ownerloperator of the facility at which\ntransloading operations take place and the motor carrier receiving the material from. the rail\ncarrier must develop and adhere to security plans which must include: (I) an assessment of\npossible transportation security risks for the hazardous material(s) being transloaded at that\nfacility; and (2) appropriate measures to address those risks, including, at a minimum,\nelements on personnel security, unauthorized access, and en route security (see\n4 172.802(a)).\nTransloading operations that are a part of present-day intermodal transportation of many\ncommodities, and are necessary.for products to reach their final destinations, did not exist\nwhen the conditions now found in 5 174.304 were first adopted by the Interstate Commerce\nCommission (ICC) in 1930, to address problems related to uncontrolled unloading operations\nand long-term storage of partially unloaded rail tank cars. In the first edition of the Code of\nFederal Regulations (1938), 8 80.1 lO(d) of Title 49 contained provisions on shipping\ninflammable liquids in rail tank cars, including the following:\n(d) Shipment in tank cars. * * *\n(5) Tank cars containing inflammable liquids having a flash point of 80 O F or below, except\nliquid road asphalt, must not be shipped and must not be delivered, unless originally\nconsigned or subsequently reconsigned to parties having private-siding or railroad-siding\nfacilities, equipped for piping the liquid from the tank cars to permanent storage tanks of\nsufficient capacity to receive contents of car.\nIn 1940, when the ICC issued a completely revised set of Regulations for Transportation of\nExplosives and Other Dangerous Goods in eight parts of 49 CFR 71-85 (combined), it\nrevised former 80.1 lO(d)(5) to add \"tar\" to the exception from these restrictions and\ndeleted the words \"must not be shipped\" in new 8 4.560(a) (5 FR 4905; December 12, 1940\nand 5 FR 509 1; December 14, 1940). to read as follows:\n\n<<<PAGE 3>>>\n\n560. Tank Car Delivery.\n(a) Tank cars containing inflammable liquids having a flash point of 80 OF or below, except\nLiquid road asphalt or tar, must not be delivered, unless originally consigned or subsequently\nreconsigned to parties having private-siding (see Note 1 [defining private track]) or railroad-\nsiding facilities, equipped for piping the liquid from the tank cars to permanent storage tanks\nof sufficient capacity to receive contents of car.\nBetween 1940 and 1976, this provision was renumbered as 5 74.560(a), the term\n\"inflammable\" was changed to \"flammable\" (14 FR 2014; April 23, 1949); the words \"or\nflammable poison gas\" were added (24 FR 5641; July 14, 1959), but later deleted in 1976\n(see below); the section number was changed from 9 74.560 to 3 174.560 (32 FR 5606; April\n5, 1967); and this provision was then revised and relocated to 5 174.304 (41 FR 15988,\n16154; April 15, 1976) with no substantive change, to read as follows:\n5 174.304 Flammable liquids in tank cars.\nA tank car containing a flammable liquid, other than liquid road asphalt or tar, may not be\ntransported by rail unless it is originally consigned or subsequently reconsigned to a party\nhaving a private track on which it is to be delivered and unloaded (see § 171.8) or to a party\nusing railroad siding facilities which are equipped for piping the liquid from the tank car to\npermanent storage tanks of sufficient capacity to receive the entire contents of the car.\nSince 1976, the only changes to this section were adding the words \"of this subchapter\"\nfollowing the parenthetical reference to 5 17 1.8 (43 FR 48644; October 19, 1978), and\nreplacing \"flammable liquids\" in the section heading and text with \"Class 3 (flammable\nliquid) material\" (55 FR 52683; December 21, 1990).\nThis history makes clear that the conditions presently set forth in 9 174.304 were intended to\napply to the delivery of flammable liquids transported in rail tank cars, and not to rnodern-\nday transloading of these materials at a rail carrier's facility. For this reason, we do not\ninterpret this section to apply to the transloading operations at the Van Dorn Yard or similar\nfacilities.\nWe recognize the concerns that your client has regarding the applicability of 3 174.304 to the\nethanol transloading operations at the Van Dorn Yard, and we believe that these concerns are\nsufficiently addressed by the HMR as discussed above. However, if your client believes that\nthe existing requirements in the HMR are not sufficient, it may submit a petition to amend\nthe HMR in accordance with the procedures set forth in 49 CFR part 106.\nI hope this information is helpful. Please contact us if you require additional assistance.\nSincerely,\ndward T. Mazzullo\nDirector\nOffice of Hazardous Materials Standards\n\n<<<PAGE 4>>>\n\nMPLAN KIRSCH ROCKWELL\nNovember 14,2008\nMs. Susan Gorsky, Acting Chief\nStandards Development\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nU. S. Department of Transportation\n1200 New Jersey Avenue, S.E.\nWashington, DC 20590\nDear Ms. Gorsky:\nWe are counsel for the City of Alexandria, Virginia, and have received a copy of your\nNovember 7,2008 letter to Mr. Lawrence Bierlein (your reference number 08-0232). After\nreviewing that letter, we are writing to seek further clarification of the applicability of 49 C.F.R.\n5 174.304 to certain shipments of hazardous materials by rail.\nYour letter responded to an email from Mr. Bierlein dated September 24,2008,\nrequesting clarification of the applicability of 49 C.F.R. 5 174.304 of the Hazardous Materials\nRegulations (HMR; 49 C.F.R. Parts 17 1 - 1 80) to a \"transloading facility\" located on the property\nof a rail carrier where lading is loaded from rail cars to other packaging, e.g., tank trucks, for\nfurther transportation to its \"final destination.\" Your response was that 49 C.F.R. 5 174.304 does\nnot apply to such an operation because it:\nis intended to apply to unloading operations at the facility that is the final\ndestination for the material. The conditions established in 5 174.304 are not\napplicable to operations of a transloading facility on the property of a rail carrier\nwhere the material is transferred to other packaging for further transportation to\nthe final destination.\nBecause this guidance regarding the applicability of 49 C.F.R. 5 174.304 is framed very broadly\nand presupposes that the activity being performed meets the regulatory definition of\n\"transloading,\" I am writing to seek further clarification of the applicability of 49 C.F.R.\n5 174.304 to a transfer operation being conducted by a railroad in a way that may affect the\napplicability of Section 174.304.\nAttorneys at Law\nDenver New York Washington, DC\nKaplan Kirsch & Rockwell LLP tel: (202) 955-5600\n1001 Connecticut Ave., N.W. fax: (202) 955-5616\nWashington, DC 20036 www.kaplankirsch.com\n\n<<<PAGE 5>>>\n\nMs. Susan Gorsky, Acting Chief\nNovember 14,2008\nPage 2\n49 C.F.R. fj 174.304 provides as follows:\nA tank car containing a Class 3 (flammable liquid) material . . . may not be\ntransported by rail unless it is originally consigned or subsequently reconsigned\nto a party having a private track on which it is to be delivered and unloaded . . .\nor to a party using railroad siding facilities which are equipped for piping the\nliquid j?om the tank car to permanent storage tanks of sufficient capacity to\nreceive the entire contents of the car.\n49 C.F.R, fj 174.304 (emphasis added).\nThe facility that is the focus of my inquiry is located in Alexandria, Virginia, known as\nthe Van Dorn Yard, and is adjacent to the lines of, and served by, the Norfolk Southern Railway\nCompany (\"NSRC\"). NSRC owns the property on which the facility is located. Lading arrives\nby rail at the facility. The lading is identified by waybills on which the only destination listed is\nthe address of the Alexandria facility. At this facility, the lading is consigned to another entity\nby the shipper, therefore the waybills specify that the lading is to be delivered to the facility\n\"care of' the consignees. The lading-a Class 3 flammable liquid-is transferred at the facility\nfrom rail cars into waiting tank trucks using portable pumps. Those tank trucks then transport\nthe lading to another destination, with no fiuther involvement from NSRC.\nIt appears that the operation described above does not comply with 49 C.F.R. fj 174.304.\nBy its terms, Section 174.304 applies regardless of whether an activity is considered \"unloading\nincidental to movement,\" \"transloading\" or arrival at a \"final destination\"; it applies simply to\nthe \"transport\" of Class 3 flammable materials by rail. The provision unambiguously permits the\ntransport of a Class 3 flammable material by rail only if one of two conditions is met: 1) the rail\ncar containing the material is transferred to a party with private track, or 2) it is piped into a\nstationary storage tank. There is no private track here - the facility is owned by the railroad, and\noperated for it by a third party contractor. There is no piping at this facility and, to the best of\nmy knowledge, no storage tank that would permit NSRC to satisfy the second alternative.\nMoreover, even if the final destination of the commodities that move through the\nAlexandria transload facility is somewhere other than that facility (although the information on\nthe waybills would cause one to believe that this facility is the final destination), the movement\nstill violates the requirements of Section 174.304. At the facilities to which this product is\ndestined, there is no private track used for unloading the commodity - it arrives on a truck. In\naddition, to the best of our knowledge, it is not piped from a rail car into a stationary storage tank\n- again, it arrives by truck.\nIn this circumstance, please provide guidance regarding the applicability of 49 C.F.R.\nfj 174.304 to the Alexandria facility. It seems that if your November 7 opinion letter is correct in\nthat Section 174.304 does not apply to such an operation, that any shipper could readily evade\nthe safety measures mandated in Section 174.304 simply by arranging for a transload en route to\n\n<<<PAGE 6>>>\n\nMs. Susan Gorsky, Acting Chief\nNovember 14,2008\nPage 3\nthe final destination. We do not believe you intended such a result and write to seek further\nclarification.\nCharles A. spit$:k\nKaplan Kirsch & Rockwell, LLP\ncc: Ignacio B. Pessoa, Esq., Office of the City Attorney\nChristopher P. Spera, Esq., Office of the City Attorney\n201 176","truncated":false,"body_characters":14369}