Mr. Andrew Abrams — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration )!AY 12 2010 1200 New Jersey Ave, SE Washington, D.C. 20590 Mr. Andrew Abrams 761 West Sproul Road #208 Springfield, PA 19064 Ref. No.: 09-0245 Dear Mr. Abrams: This responds to your October 21, 2009 letter requesting clarification of the requirements for Design Certifying Engineers (DCE's) under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask about DCE certification of a design for an emergency discharge control system for a cargo tank motor vehicle in liquefied compressed gas service in accordance § 173.315(n). Your questions are paraphrased and answered as follows: Q1: A hose system designed to automatically shut off the flow of product without human intervention in accordance with § l73.3l5(n)(2) may be intended for a specific application and, thus, may include components, such as pressure-specific rubber, metal, or PTFE hose material, or metallurgic fittings, that are unique for the intended application. For such unique designs, may the DCE elect to issue a certification utilizing specific serial numbers with contemporaneous hose test dates rather than a more general design certification? AI: Yes. The DCE may issue a unique certification that would apply to a single hose system rather than a more general certification for a hose system design. In that circumstance, the certification could identify, by serial number and test date, the specific hose system to which the certification applies. Q2: If the above design certification process is appropriate, maya facility continue to issue date and hose specific certifications bearing the DCE's signature when the DCE is no longer employed at the facility? Or would PHMSA expect the facility to retain a new DCE? A2: The DCE certification remains effective for the service and parameters cited in the certification with or without the consent ofthe DCE and even in the event that the DCE dies. The DCE certification, however, applies only to the specific design described in the certification. A new DCE certification is required if the previously-approved design is#

Page 2modified. In the event a DCE issues a unique certification for a single hose system, the certification may not be used for a different hose system. I trust this satisfies your inquiry. Please contact us if we can be of further assistance. Sincerely, <, l ,/~ t ..-\--~-.-- /.{ , l,:l'I '/ ,/1,'1 ,/1 ~'d/tu-<-"- '-'/ " /' I'/~L rrr C£O' I " / Edward T. Mazzullo ' (/,' Director, Office of Hazardous Materials Standards#

Page 3Andrew Abrams 76 I VIIest Sproul Road Unit 208 Springfield, P A ] 9064 Wednesday, October 21,2009 IV I e/t.el.s 7s 173· 3/..3 Cargo TCU1 kS () 7 -t):L'f~ Mr. Edward T. Mazzuilo Director - Office ofHazardous Materials Standards Pipeline and Hazardous Materials Administration US Department ofTransportation 1200 New Jersey Avenue, SE Building 2nd Floor Washington, DC 20590 Re: Letter ofInterpretation - 49 CFR 173.315-F(Jlfm}'~li!} Dear Mr. Mazzullo I am writing to follow-up on my January 22 2009 letter, and my correspondence with Ms. Susan Gorsky, related to the above-captioned inquiry to ask for further and more specific clarification ofthe regulations as they relate to the role ofa Design Certifying Engineer ("DCE") in the assembly and installation ofspecific passive shut-off devices. Based upon our previous conversation, you indicated that the January 22 letter was not inputted into your system, so I am sending it as an attachment to this letter. Ms. Gorsky previously opined about the role of a DCE as it relates to the historic class of systems that are typically certified. I regret that we were not more specific in our inquiry to her, as the system in question poses a unique situation. Ms. Gorsky's opined after on July 18, 2008, when the DOT conducted a compliance review at Zena to determine its compliance with federal regulations. During the review, the DOT determined that Zena had violated the regulatory scheme with respect to the hose certifications bearing Joseph Abrams' signature after his termination. Specifically, the DOT determined that Zena had violated federal regulations because "The Company's Design Certitying Engineer (DCE) was terminated on 3/3/08. The company continued to use the terminated DCE name on test certifications after 3/3/08." As a result, the DOT subsequently served Zena with a "Notice ofClaim" in the amount 01'$21,480 as a fine for its violations. A copy of the findings are attached to the enclosed letter. To reiterate the fundamental regulatory provisions: 49 C.F.R. Section 173.315(n)(2)(ii) provides that a certification must "consider any specification ofthe original component manufacturer" and must explain how the passive means to shut offthe now of product operates. It must also outline the "parameters (e.g., temperature, pressure, types of product) within which the passive means to shut offthe flow is designed to operate" and that a copy ofthe design certification must be provided to the owner of the cargo tank motor vehicle on which the equipment will be installed. In her letter dated December 5, 2008 (a response to my October 8 200& tetteT, bofu of which are enclosed), Ms. Gotsk:y indicated that the DeE certification process is intended#

Page 4to be a "one-time" process as it was historically developed for cargo tank and unchanging standard passive shut-off technology systems. What we neglected to ask Ms. Gorsky, and the questions that require clarification, are the following: 1. If a DCE, when "consider[ing] any specification of the original component manufacturer," determines that a "one-time" certification is not appropriate because the passive device hose system that he is certifying requires the combination ofvarious components, such as pressure specific rubber, metal or PTFE hose materials with the proper metallurgic fittings (and other additional components), all considered in the context of the application to which the hose will be put, can he more appropriately choose to issue a date and hose specific certification, utilizing hose specific serial numbers with contemporaneous hose test dates?1 (A copy ofthe date and hose specific form of certification that Smart-Hose Technologies Inc. and then Zena Associates LLC d/b/a Smart-Hose Technologies has used is attached hereto.) Note: the attached New Hose CertifICation was issued on 4///08 after the DCE was employed at Smart-Hose andpart ofthe aforesaid DOT investigation. 2. If the aforesaid design certification process is appropriate, would it be compliant for a facility to continue issuing date and hose specific certifications bearing the DCE's signature when the DCE is no longer employed at the facility or would you expect them to retrun a new DCE? Thank you for your consideration. 1 . "Date and hose specific" meaning that each time a hose is sold a certification is prepared attesting that the specitic technology incorporated in the specific hose being sold is appropriate for use at a certain working pressure in a specific application, and when installed on specified equipment will satisfY the passive shut-down feature required by 49 C.F.R. 173.31 S.#

Page 5SMART HOSE TECHNOLOGIES New Hose Test Certification The Smart-Hosetm technology is a proven hose technology designed to counteract the hazardous effect of hose rupture or failure during fluid or gaseous ' tM transfer operations. All Smart....ose designs. Smart-Hosetm It Smart-Hosetm I with breakaway, Smart-Hoselm It and Smart-Hosetm lit utilize the unique, patented and patent pending designs which eUmlnates the potential for disaster '';' through the use of an internal cable connected to specially designed, normally unseated vaive "wedges or plungers" located on each end of the cable. In the event of hose separation. stretching to the point of an unsafe condition, or coupling-tohose separaUon, the valve "wedges or plungers or flappers" are released and lnstantiy seat stopping the flow In both dlractrons. (Operating temp. -4O"F to 160"F) I certify that this hose a8sembly meets all the requirements of the DOT and when Installed on any MC330. MC331 or authorized non-specification compressed gas cargo tank will satisfy the requirements for the passive shut down feature required for these cargo tanks by 49CFR 173.315 US DOT. Certified By: Smart-Hose Technologies CT# 7953 Des'ign~ertlfYinQ Eng':-~JO$ep~~~~~~te: 4;1';~~'-- On the above date, Smart-Hose Technologies has inspected and tested the hose assembly listed by serial number below. Visual InspectIon: Accepted Test Pressure: 700 PSIG Passed Working Pressure: 350 PSIG Passed Hose Type:Hose. NH3- LL 3-2" X 18.6 31S-8S.FNPT - MNPT rebuilt snd-flttlng SERJAL# 416971 ~:' 50#4520 Registered Inspec~ Company Owner of Hose: ______________ Company Representative Signature: _____~ _____ ThIS !&sf only represents that the hose haS passed the defined test on too dais tesled. no other wamsnty express or implied is granled all a result of this certificate. Itis importanlthat all hose be inspgcf9d and tested cn a regular basis in accordance wllh Sman:·Hose Tecf1nol~e$ Form 1H999-1 ·Proper Hose Use, Care and MaIntl!InanCIII: 2538 S 59 ' St, Philadelphia, PA 19143 Toll Ftee (877) 356-6278 Fax (215) 730-0558 . Test Cerl. Form #99-9 Rav,(i (March 20()1) .. ~ , '. lOO/Loolt1#

Page 6U.S. Department ofTransportation Pipeline and Hazardous Materials Safety Administration DEC 5 2008 1200 New Jersey Ave., SE Washmgton, DC 20590 Mr. Andrew Abrams 761 West Sproul Road Unit 208 Springfield, PAl 9064 Ref. No.: 08·0273 Dear Mr. Abrams: This is in response to your October 28,2008 letter requesting clarification ofthe requirements for Design Certifying Engineers (DCEs) and Registered Inspectors (RIs) und the Hazardous Materials Regulations (HIvfR; 49 CFR Parts 171-) 80). We provided you wi~ a letter (Ref. No.: 08.0205; copy enclosed) on October 21, 2008 addressing the roles performed by the DCE and RI during the assembly and installation of Smart-Hose Passive Devices. This letter provides additional clarification, as requested by your October 28. 2008 letter. Your questions are restated and answered as follows: Ql: Is the DCE's certification intended to be a "one-timo" certification? What if the DCE dies or does not provide consent for the company to use the certification? AI: The DCE's certification indicatos that the design and construction meets the applicable DOT specification. This is a "ope-timo" proce&Si pnce the DeE approves the design and provides the necessary documentation thero is no need for the manufacturer to have the design recertified. The nCB certlfloltlon rcmftins effective with or wilhout the consent of the DCE IUld even in the event th'lt th~ DeE dies. A new DCE certification is only required if tho provlously approved dcsiln i. ~odUied. As defined in § 180.403, a "modification" meaQl any C!hange to the oriBimd <lesiOI1 apd construction ofa cargo tank or cargo tank motor veiliol. that atTec1.lls struc"....a' intcsrity or lading retention capability, including changes to f4ldpment cenUlcd as pan ofan emergency discharge control system required under t 173.)15(n)(2). ExcludlKl are the replacement ofcomponents ofsimilar design and ofthe ...Ize. . Q2ala tho 'U's supervision raqulr" fOl &ho installallon ofa hose-based system that provides the reqldml paulve shut-down QapabUlcy? ;\2. No. M '''plainod in our Octobor 2',2008 letter and providcxl In § 173.315(n)(2](iii}, RI supervl.lon i. rant reqalired for the 'nshtUa,fon ofemer8e{l~)' 4JIPharse control eq~lpment that is in....'od and remove4 as part C)fresqhtr operation oflha cargo rank motor vehIcle (e.g., I 110..). Ja',lho r"ponslbltlty.oflbe DeE to certilY ,hac tho emergency discharge control,~ 1.4Islpod to aUlQJnalfc.Uy shut offpro4uct flow without the need for human#

Page 7intervention within 20 seconds of an unintentional release caused by a complete separation of a liquid delivery hose (§ 173.315(n)(2)(ii». Given that the DCE approves the design of the emergency discharge control equipment and it is attached to a cargo tank motor vehicle in the same way as an ordinary hose, Rl supervision is not necessary. In addition, ifyou are aware of an operator that is using a new or modified hose design that has not been approved by a DCE you may file a complaint at http://www.phmsa.dot.gov/hazmatlenforcement or contact our enforcement office directly at (202) 366-4700. I hope this infonnation is helpful. Please contact us if you require additional assistance. Sincerely, -'1 IJ· /V't,0L .ofo J Susan Gorsky Regulations Officer Office of Hazardous Materials Standards#

Page 8Andrew Abrams 761 West Sproul Road Unit 208 Springfield, PA 19064 Tuesday, October 28,2008 Ms. Susan Gorsky Acting Chief, Standards DeveJopmenmt Office ofHazardous Materials Technology US Department of Transportation PHMSA 1200 ~ew Jersey Avenue, SE Building 2nd Floor Washmgton, DC 20590 Re: Letter of Interpretation - 49 CFR 173.315. Follow-Up Dear Ms. Gorsky I am. wri~g to. follow-up on your October 21 letter in connection with the above captIoned mquuy to ask for an additional clarification ofthe regulations as it relates to the ~Ie of ~ DCE and Registered Inspector in the assembly and installation of certain passIve deVIces. In your letter you indicated that (1) Tho DeE Is only required to certifY that the design confirms to the performance standard and that there is no requirement to review each component throughout themanuflWturing process. Issue: if the regulatlpns indlcAto that" All components ofthe discharge system that are Integral to the design niHIl hff t""/~d In the certification." and these components have certain Inconsistency such as SQlU'Oes ofmatcrial or metallic composition, is the DCE's certiflcatipn lnaonded to be .. "o",..tlme" certification? • Can thoro bo 11 ",ertitlcaUon issued by a now deceased DCE? • DoOl "'0 OCE'. certificatlort need to specifically identifY each of the components. so"""'. Qfmatorlal. bills ofmaterIal that they are certitying and ifthe manufacturer changes these componenfs. a new DCE certification might be require"? U'IO, what WPlJld happen ifthe DCE issued a generic system oCl1iftcarion and then was no longer employed by the company - could the company continuo to use the certification without hislher consent? Issu!! In your reply ),ou indicated that the Emergency Discharge Control Equipment must <'b, l7IStalled under the supervision ofa Registered Inspector" but you identified an ambigulf)' regarding Itoscs. Wo believe that the regulations were promulgated in conneotlon With systf.'ml such as RF devices that are manufactured by one company but uttfmlltoly both assembled and installed by the end-user (ie truck assembler) and not the manufactull'r. Therefo"" the requirement for a Registered [nspector was to assure tbat the 8!l!tem DS eOUCfrttv instaJJed and not put together by some unknowledgeable party.#

Page 9• Since the Smart-Hose system (or any funy installed hose based passive device) has its final installation completed by its own employees and not the end-user, is the intent of the regulations to not require aoy supervision while this type of passive device is installed? Why would we require a Registered Inspector to install an RF system but require no supervision either by the manufacturer or the end user in the case of a hose based system? • Do you agree that since the hose is installed merely by threading it onto the appropriate connection, if we define iristalled for hoses it would have been impractical to have every truck driver become a RI. If however we define "installed" tor hose based passive device systems to be when the passive device is installed within the hose, would it not make sense for an RI to oversee this installation and therefore be consistent with the intent of the regulations? • Was the intent of the language "under the supervision ora Registered Inspector" to require the system to Registered Inspector to look carefully at or over; view closely and critically or examine formally or officially the installation ofthe passive device and therefore must this function be performed contemporaneously with the installation ofthe system? More succinctly, can this function be performed by someone who is not present during the installation? Thank you for your consideration. Sincerely, Andy Abrams#

Page 10Andrew Abrams 761 West Sproul Road Unit 208 Springfield, P A 19064 January 222009 Ms. Susan Gorsky Acting Chief, Standards Development Office of Hazardous Materials Technology US Department ofTransportation PHMSA 1200 New Jersey A venue, SE Building 2nd Floor Washington, DC 20590 Re: Letter ofInterpretation - 49 CFR 173.315- Follow-Up -1 Dear Ms. Gorsky I am writing to follow-up on your December 5 2009 letter in connection with the above captioned inquiry to ask for a fonnal meeting to discuss your reply regarding your clarification ofthe regulations as it relates to the role of a DCE and Registered Inspector in the assembly and installation of certain passive devices. Since the exchange of infonnation has not been expressed properly and your explanation is directly in contradiction to the discussions that fonned the basis ofthe internal SmartHose certification in 2001, I believe it would be prudent to meet. I have discussed your answers with Mr. Alan Roberts who expressed his strong disagreement with your conclusion. As the fonner RSP A Administrator and the overseer of these regulations, I believe that a meeting to further clarify your interpretation would be helpful to all. Under your basis, you can be assured that no one would certify a system in perpetuity exposing themselves to liability should there be a malfunction even if they had no oversight regarding the system at hand. Moreover, having been specifically involved in the regulatory process that spawned these regulations, the hose based Registered Inspector "carve out" only related to the actual attachment of the hose and not its assembly/installation in the system. If we follow your interpretation, you would sanction a dead DCE and no inspector assemble "Passive Devices". How can we reconcile this interpretation against the companies previously adhered to two primary SOPs - Production Inspection Points and Quality Control Critical Inspections that specifically identify safe and proper operations? Should they be changed to accommodate the above missing safety;personnel that the entire process clearly sought? During Joseph Abrams' tenure after we consolidated the in-house DCE with the QC Inspector's role, he performed these duties on a regular basis. The Certification was#

Page 11' developed as a hose specific certification identifying "this hose assembly .. "not all assemblies. Was this erroneous and should his signature identifying a contemporaneous date with this language be acceptable. Could he continue to certify "this hose assembly..." as ofthis date ifhe were no longer alive? As ofnow, despite clearly established procedures identifying a continuous need for "the above designated inspections {to beJ performed by a Quality Control Inspector", there has been a four month period without any of these procedures being adhered to. Moreover, the absolute need for such inspection is highlighted in internal procedures that specifically call for "random spot checks by the Q.C Inspector". In the absence ofany registered (or Q.C.) Inspector, how might this procedure be complied with? Procedures developed based upon safe practice and the regulatory process that The certification developed, based upon the regulatory process and procedures sought to meet the intentions of the law and common safety practice. With all due respect, we believe that you personal interpretation is erroneous, not consistent with this type ofhose based Passive Device and request a formal hearing to discuss this matter further. Thank you for your consideration. Sincerely, Andy Abrams#

Page 12Page 1 of 1 Drakeford, Carolyn (PHMSA) From: Mazzullo, Ed (PHMSA) Sent: Wednesday, October 28,20099:'10 AM To: Gorsky, Susan (PHMSA); Drakeford, Carolyn (PHMSA) Subject: FW: Clarification Attachments: edward t mazullo- oct 21 2009,pdf Carolyn: Please assign for response, Susan: He may have a valid pOint What do you "opine"? Ed From: Andy Abrams [mailto:acabrams@comcast.net] Sent: Tuesday, October 27, 20094:55 PM To: Mazzullo, Ed (PHMSA) Subject: Clarification Dear Mr. Mazzullo Enclosed please find the information inquiry we discussed. A separate copy is being sent via courier today. In light ofthe importance of this issue, we would respectfully request an expedite evaluation ofthis request. I am happy to visit your office and meet with you and your colleagues if this will assist in this process and expedite the reply. Thank you in advance for your consideration. Warmest regards. Andy Abrams 267-307-0949 10/28/2009#