{"operation":"document","citation":"18-0118","title":"HazMat Resources, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-12-10","effective_on":null,"summary":"18-0118 response to HazMat Resources, Inc. concerning 173.33, 178.345, 180.405.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0118.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0118.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0118","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/72946/180118.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nDEC O ~ .· 2019\nDaniel Shelton\nPresident\nHazMat Resources, Inc.\n141 Wendover Drive\nKingsport, TN 3 7660\nReference No. 18-0118\nDear Mr. Shelton:\nThis letter is in response to your August 27, 2018, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicableto the pressure relief device\n(PRD) requirements for MC 300 series cargo tank motor vehicles (CTMV).\nWe have paraphrased and answered your questions as follows:\nQ 1. You ask what the terms \"modify\" and \"replacement\" mean as they pertain to\n§§ 173.33(d) and 180.405(h).\nAl . The terms \"modify\" and \"replacement\" are used in the same context regarding the PRD\nrequirements for CTMV s-i.e., \"modify\" meaning change from a current specification to\nan authorized alternative specification and \"replacement\" meaning substituting the old\nspecification PRD with the authorized alternative specification PRD. For example, you\nmay modify an MC 307 PRD by replacing it with a DOT 407 PRD. Furthermore, in\naccordance with § 180.405(h)(l ), until August 31 , 1998, the owner of a cargo tank could\nreplace a reclosing PRD with a device which complied with the specification\nrequirements for PRDs in effect at the time the cargo tank specification became\nsuperseded (e.g., a new or refurbished MC 300 series PRD). After that date, if the PRD\non a MC 300 series CTMV is no longer properly functioning, it must be replaced with a\nPRD that meets the requirements of§ 178.345-10.\nQ2. You ask whether the original specification requirements no longer apply to MC 306, 307\nand 312 CTMV s currently in-service given that new CTMV s cannot be constructed in\naccordance with those specifications.\nA2. The original specification requirements still apply to in-service MC 306, MC 307 and\nMC 312 CTMV s. However, a newly constructed CTMV or its components, such as\nPRDs, are not authorized to be constructed in accordance with the MC 300 series\nspecifications. A newly manufactured PRD must be constructed in accordance with\n§ 178.345-10.\n\n<<<PAGE 2>>>\n\nWith respect to your comments about the preamble text of final rule, \"Hazardous Materials:\nMiscellaneous Amendments; Response to Appeals; Corrections\" (HM-218H), we recognize that\nthis language has caused some confusion. We hope that the responses in this letter can provide\nfurther clarity. Moreover, we affirm that the response in Interpretation Letter Ref. No. 16-0183\nis accurate.\nI hope this information is helpful. Please contact us ifwe can be of further assistance.\nSi3¥ /~\n\"~ Chief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nJanuary, Ikeya CTR (PHMSA)\nFrom:\nSent:\nTo:\nCc:\nSubject:\nAttachments:\nKelley, Shane (PHMSA)\nMonday, August 27, 2018 9:39 AM\nJanuary, Ikeya CTR (PHMSA)\nDerKinderen, Dirk (PHMSA); Foster, Glenn (PHMSA)\nFwd: Request for Interpretation\nPressure Relief Devices - 180.4070)+.pdf\nGood morning lkeya\nPlease log this and ensure Glenn and Dirk are in the chain for response. We have a conflict between an interp\nand a rule preamble we need to resolve.\nThanks\nShane\nFrom: Daniel Shelton <dshelton@hazmatresources.com>\nSent: Monday, August 27, 2018 9:24 AM\nTo: Kelley, Shane (PHMSA)\nSubject: Request for Interpretation\nAttached are my comments and request for clarification regarding venting. I know that you were not part of this\ndebacle, this is what your predecessor left you with and it is ugly to say the least. The reason TTMA called you was\nbecause the comments in HM218 published on June 18, 2018 did not fit their narrative that venting capacity ~alculated\nin accordance with the original specification does not matter and it not a safety issue. I will call you later today or you\ncan set aside a time to call me.\nThanks for your willingness to address the issue. I will be in touch\n1\n\n<<<PAGE 4>>>\n\nHazMat Resources, Inc.\nQ7 Questionable If one could modify the set pressure of a 407 vent from 42 to 35\nthis would also change the operating range of the vent and the\nreseat pressure of the vent. It would not pass a bench test as\nmodified. This scenario is unlikely to ever happen and the\nresponse makes no sense.\nScenario 2\nWith the new operating ranges of the MC306 vent there is no justifiable reason why a person\nwould want to put a DOT 406 vent on a MC306 cargo tank. The MC306 vent has a wider\noperating range (3 psi - 4.4 psi to open - 1.4 psi) and can reseat as low as 2. 7 psi. While a DOT\n406 vent installed on a DOT 406 with a MAWP of 3.3 must have an open range (3.63 to 4.55 .92\npsi) and must reseat no less than the MA WP (3.3 in this case). When performing a bench test of\nthese vents the MC306 vent has a wider target to hit and less chance of the vent failing a bench\ntest. The choice for a MC306 cargo tank is a MC306 vent.\nScenario 3\nNo comments on Scenario 3. The following questions are respectfully submitted for response\nfrom the competent authority on the safe transportation of hazardous materials.\nPlease respond to the following questions:\nQuestion I - What does PHMSA mean when the term \"modify\" is used when discussing\npressure relief devices. Please limit the response to 180.405(h) and l 73.33(d)\nQuestion 2 - What does PHMSA mean when the term \"replacement\" is used when discussing\npressure relief devices. Please limit the response to 180.405(h)-and 173.33(d).\nQuestion 3 - If PHMSA cannot attribute a HM Incident to a regulation, is that sufficient\njustification to turn a blind eye and not enforce the regulations as written.\nQuestion 4 - ls it the position of PHMSA to conclude that because MC306, 307 and 312 cargo\ntanks are no longer authorized for construction that the original construction and manufacturing\nspecification requirements no longer apply to those MC306, 307 and 312 cargo tanks still in\nservice?\nQuestion 5 - A key function performed by cargo tank test and inspection facilities is to verify the\ncargo tank is equipped with the minimum venting capacity as required by the specification. An\nessential variable in this determination is the surface area in square feet. This provides the\nfacility the venting capacity requirement that needs to be confirmed by inspecting the pressure\nrelief devices. For a MC307 cargo tank with a design pressure/MA WP of 25, the pressure relief\ndevice must provide the minimum venting capacity at no more than 130% of the design\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252\n\n<<<PAGE 5>>>\n\nHazMat Resources, Inc. . .\nt ~~~iiiil' JJ\n.... .\n--~\n.......... ~ ...\npressure/MA WP. When a 400 series vent is installed on a MC307 cargo tank with a MAWP of\n25, the vent will not provide the flow rating stamped on the vent until the pressure in the cargo\ntank reaches 40 psi. This does not meet the specification requirements identified in §§ 178.342-\n4(c) or the requirements for replacement devices identified in§§ 180.405(h)(3). It is a violation\nfor a Registered Inspector to sign a test report stating the cargo tank identified in this report\nmeets the qualification of the specification when, in fact, it does not. So the question is this;\nDoes a cargo tank meet the requirements of the specification when it is not equipped with a vent\nthat meets the minimum venting capacity requirements of the specification as designed and\nconstructed in §§ 178.342-4, 180.405(h)(3) and 173.33( d)?\nQuestion 6 - It is important for the competent authority (PHMSA) to reach out to the regulated\ncommunity to develop and implement regulations that effectively improve the transportation of\nhazardous materials. Why is it acceptable for the competent authority to knowingly publish\nregulations that conflict with other parts of the regulations and specifically the publication of§§\n180.407(j) which does allow for a vent to be replaced on a MC307 cargo tank and that vent does\nnot comply with I 80.405(h)(3) nor 173.33(d)?\nQuestion 7 - How does the response from PHMSA which allow a cargo tank to be operated not\nin accordance with the regulations in effect support the mission statement of PHMSA.\nThe solution to this problem is to require operators to install pressure relief devices on cargo\ntanks that comply with all the requirements as written, not what TTMA thinks the regulations\nshould say for the benefit of their members. One vent manufacturer has developed a pressure\nrelief device for MC307 cargo tanks that does comply with the set pressure and venting capacity\nrequirements of the original specification and eliminates the need for fusible devices. There was\nnever a need for PHMSA to roll over and succumb to the wants and the needs of TTMA and by\nPHMSA' s own actions adversely effect the safety of hazardous materials in transportation.\nRegards\n0......,:P~-~\nDaniel G. Shelton\nPresident, HazMat Resources, Inc.\nAttachments: Interpretation 16-0183 dated September 5, 2017\nGuidance issued by PHMSA on November 18, 2005\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252\n\n<<<PAGE 6>>>\n\nHazMat Resources, Inc.\n, _ ~~~~j\n\\. \"\n~ ...... _ .. ....\nAugust 27, 2018\nMr. Shane Kelley\nDirector, Standards and Rulemaking Division\nU.S. DOT/PHMSA (PHH-10)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nMr. Kelley,\nPlease accept this letter as an official request for an interpretation and clarification of the\nDepartment's interpretation 16-0183 dated September 5, 2017. When it comes to issuing\ninterpretations, the original history and intent of the rule is very important and should be given\ngreat weight when issuing any regulatory guidance to the public. The Pipeline and Hazardous\nMaterials Safety Administration (PHMSA) has developed a long history regarding the\nreplacement of pressure relief devices on cargo tanks. The Federal Motor Carrier Safety\nAdministration (FMCSA), Hazardous Materials Division worked closely with the leadership of\nPHMSA to develop consistent guidance to the field staff to ensure the guidance was consistent\nwith the regulations as written and specifically this issue regarding vents and venting devices.\nI believe I have a clear understanding of what the intent of the rule was because of the\nrelationship developed between the HM Division of FMC SA and PHMSA's Standards and rule\nmaking Division. A copy of the guidance issued by Susan Gorksy at the direction of Ed\nMazzullo with concurrence by FMCSA on November 18, 2005 is attached for your reference.\nThe non-concurrence of FMC SA to this initial rulemaking speaks volumes to the coordination of\ntwo Agency' s within the same Department who have agreed to a memorandum of understanding\nto delegate the oversight of cargo tank facilities to FM CSA and then create a rule that effectively\neliminates FMC SA from taking effective action to ensure the continued safety of cargo tank\nmotor vehicles. 1 To add to the confusion of an ill-conceived rule is the publication of PHMSA-\n2013-0225 (HM-218H) which states the following :\n\"PHMSA has received some inquiries regarding the new provisions of§\n180.407(j) and how they relate to other sections pertaining to CTMVs.\nTherefore, PHMSA seeks to clarify that while§ 180.407(j) permits DOT 400\nseries pressure relief devices to be installed on MC 300 series CTMVs, the\npressure relief devices must still meet the venting capacity and set pressure\nrequirements of the original specification, in accordance with §§ 173.33( d)(3)\nand 180.407(h)(2)\"\n1 A great analogy would be li ke the Romans requiring the Hebrews to make bricks without straw.\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252\n\n<<<PAGE 7>>>\n\nHazMat Resources, Inc.\nThe original guidance published jointly by FM CSA and PHMSA addressed venting capacity and\nset pressure requirements for the installation of modified vents on MC307 cargo tanks. Hazmat\nResources, Inc. would respectfully request that you also consider the specification requirements\nfor the construction of MC307 cargo tanks. Although some 300 series tanks are no longer\nauthorized for construction one cannot say these construction requirements have been superseded\nand no longer apply to a cargo tank was designed and constructed in accordance with these\nrequirements 23 plus years ago and is still in service today. When the cargo tank was\nconstructed it was required to be manufactured in accordance with the specification requirements\nin effect at the time of construction. Carefully consider the following specification requirement\nin effect at the time of construction of MC307 cargo tanks and specifically§§ l 78.342-4(b)\nwhich states the following:\nTotal capacity. Every cargo tank compartment shall be provided with one or more\ndevices with sufficient capacity to limit the tank internal pressure to a maximum\nof 130 percent of the tank design pressure. This total venting capacity shall be not\nless than that determined from Table Ill, using the external surface of the cargo\ntank or tank compartment as the exposed area.\nI would respectfully request that you also consider the requirements in §§ 180.405(h) and\nspecifically (h)(3) which are still in effect and applicable today, August 24, 2018. It\nstates the following:\n(h) Pressure relief system. Properly functioning reclosing pressure relief valves\nand frangible or fusible vents need not be replaced. However, replacement of\nreclosing pressure relief valves on MC-specification cargo tanks is authorized\nsubject to the following requirements:\n(h)(l) Until August 31, 1998, the owner of a cargo tank may replace a reclosing\npressure relief device with a device which is in compliance with the requirements\nfor pressure relief devices in effect at the time the cargo tank specification became\nsuperseded. If the pressure relief device is installed as an integral part of a\nmanhole cover assembly, the manhole cover must comply with the requirements\nof paragraph (g) of this section.\n(h)(2) After August 31, 1998, replacement for any reclosing pressure relief valve\nmust be capable of reseating to a leak-tight condition after a pressure surge, and\nthe volume of lading released may not exceed 1 L. Specific performance\nrequirements for these pressure relief valves are set forth in § 178.345-1 0(b )(3) of\nthis subchapter.\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252\n\n<<<PAGE 8>>>\n\nHazMat Resources, Inc.\n(h)(3) As provided in paragraph ( c )(2) of this section, the owner of a cargo tank\nmay elect to modify reclosing pressure relief devices to more recent cargo tank\nspecifications. However, replacement devices constructed to the requirements of\n§ 178.345-10 of this subchapter must provide the minimum venting capacity\nrequired by the original specification to which the cargo tank was designed\nand constructed.\nI would respectfully request that you also consider the requirements in §§ 173.33(d)(3) which\nare still in effect and applicable today, August 24, 2018. It states the following:\nA cargo tank motor vehicle made to a specification listed in column 1 may have\npressure relief devices or outlets conforming to the applicable specification to\nwhich the tank was constructed, or the pressure relief devices or outlets may be\nmodified to meet the applicable requirement for the specification listed in column\n2 without changing the markings on the tank specification plate. The venting\ncapacity requirements of the original DOT cargo tank specification must be\nmet whenever a pressure relief valve is modified.\nPHMSA published a rule sponsored by The Truck Trailer Manufactures Association\n(TTMA) which is direct conflict with existing regulations and the regulations in effect\nwhen the cargo tank was originally constructed, and this has created a conundrum2\n. If the\ncompetent authority had listened to their Stakeholders, especially FMCSA, there would\nnot be this conundrum today.\nAlthough some TTMA members have asserted that MC307 cargo tanks manufactured by\nmember companies are designed to withstand higher pressures but that does not mean\nthat all MC307 manufactured by every manufacture was built to withstand these higher\npressures because it was not a requirement and those original construction requirements\ndid not change with the publication of 180.4070). TTMA thru its engineering committee\nconvinced the Department that MC307 cargo tanks with a marked MA WP of 25 psig are\nreally designed to operate at much higher pressures continually and those operating\nparameters will not impose or increase the probability of a failure. Even though these\ncargo tanks will be subject to operating parameters 23% to 38% (40 to 45 psi) higher than\nthe cargo tanks design specification to achieve the minimum venting capacity required by\nthe table PHMSA believes this will not have any adverse impact on safety. TTMA used\nthe HM Data from PHMSA to prove the point that no HM Incidents have been\nattributable to improper venting. This does not even pass the laugh test. GIGO -\nGarbage In/Garbage out.\n2 A question or problem having only a conjectural answer\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252\n\n<<<PAGE 9>>>\n\nHazMat Resources, Inc. t\\ioiiiii,iiii,ii~i,iiill' J j\n\\ .\n....... .,~. ~ ~✓\nAs a reminder here is PHMSA' s mission statement:\n\"PHMSA's mission is to protect people and the environment by advancing\nthe safe transportation of energy and other hazardous materials that are\nessential to our daily lives.\"\nHow do these actions support your mission statement? Nowhere in this mission statement do I\nsee where it says to work with lobbing groups to give them what they want. It is difficult to\nunderstand how any government regulatory Agency or Department, especially a Department\nwhose mission it is to ensure the safe transportation of hazardous materials conclude it is\nacceptable for a cargo tank to continuously be subjected to pressures 38% higher than what it\nwas originally designed simply because there have been no recorded HM Incidents (that assumes\nthe HM Data is correct and all incidents have been reported - bad assumption) is reason enough\nto not enforce the regulations as written. ls it the position of PHMSA to use inaccurate and\nincomplete HM Incident data as the primary justification for not enforcing a regulation?\nThousands of examples can be provided where this is not the case, but in this case regarding\nventing on old cargo tanks it appears from what the Department has published, that is the case.\nJust three examples for one to consider;\n1. How many HM Incidents have been attributed to the shipping description being in the\n2. 3. wrong order;\nHow many HM Incidents have been attributable to the shipping paper not being tabbed;\nHM Incidents have been attributable to lightweight appurtenances being attached to a\ncargo tank without the means of a pad.\nBoth PHMSA and the Federal Motor Carrier Safety Administration (FMCSA) in association\nwith their State Partners, routinely document roadside violations that have never caused a single\nHM Incident. Do you think it is possible the reason why these HM Incidents are not occurring is\nbecause of the regulatory requirements? One can only wonder.\nThe basis for Hazmat Resources, Inc. concerns rise from the actions taken by the Department\n(PHMSA and FMCSA) versus what the interpretation letter, 16-0183 dated September 5, 2017\ncommunicates or fails to communicate. The following questions and responses from PHMSA\nare identified in the attached interpretation and the concerns and recommendations for each reply\nare stated for each item.\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252\n\n<<<PAGE 10>>>\n\nHazMat Resources, Inc. t~~~~ Jj\n\\_ .\n, . ..... M. ~ 1-\nScenario 1\nQuestion Correct Recommendations and Comments\nIdentifier Questionable\nQl Correct None\nQ2 Correct This is the way 407 vents were designed to operate.\nQ3 Questionable The justification in A3 uses the following: I) FM CSA states\nthere are less than 300 of these tanks in service. I personally\nknow of three companies and the total number of MC307's is\nover 3,000. Industry experts say there are up to 20,000 of these\ncargo tanks still in service. 2) You quote the same violations\nthat say the vent must limit the tanks internal pressure to no\nmore than 130% of the desig~ re sure or MA WP. The 407\nvent will not even be open ~ f l3~ of the design pressure and\nwill not provide adequate vertting capacity until the pressure in\nthe tank reaches 52.5 psig, 50% higher than the MA WP so it\nwould be like the cargo tank having pressure test every time the\nvent would be able to provide the minimum venting capacity or\nput another way it would be 15% higher than the specification\nrequirement for calculating the minimum venting capacity (35 x\n1.3 = 45.5 psi not 52.5 psi). Why does the Department state in\n§ § 180 .407 (g) that safe guards musf be in place when\nperforming a pressure test? 3) The Department states there is\nno HM Incident data regarding the upgrading of these vents. So\nthat means it is OK. That is a very slippery slope for a\nregulatory Agency to go down and I cannot believe this would\nactually be in writing that regulations would not be enforced if\none's lack of compliance with the regulations did not result in a\nHM Incident.\nQ4 Questionable It is in violation of 173 .33( d)(3 ). Read what it says: \" ... the\npressure relief devices or outlets may be modified to meet the\napplicable requirement for the specification listed in column 2\nwithout changing the markings on the tank specification plate.\nThe venting capacity requirements of the original DOT cargo\ntank specification must be met whenever a pressure relief\nvalve is modified.\nWhat is the meaning of modified versus replace?\nQ5 Questionable It is acceptable from a bench testing perspective because the\nvent operates as it was designed to operate but it still will not\nprovide the minimum venting capacity that is required at 130%\nof the design pressure or MA WP.\nQ6 Questionable Not worthy of a comment. Cargo tank facilities do not have the\nexpertise to modify vents to operate at different settings.\n141 WENDOVER DRIVE\n♦ KINGSPORT, TN ♦ 37660 ♦ DSHELTON@HAZMATRESOURCES.COM ♦ 423-863-2252","truncated":false,"body_characters":22253}