East Bay Law — Hazardous Materials Safety Interpretation

Page 11200 New Jersey Avenue, SE Washington, DC 20590 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration June 23, 2022 Mr. Andrew W. Shalaby East Bay Law 7525 Leviston Avenue El Cerrito, CA 94530-3306 Reference No. 21-0097 Dear Mr. Shalaby: This letter is in response to your September 22, 2021, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to brazed seams on Department of Transportation (DOT) specification 39 (DOT 39) non-reusable (non-refillable) cylinders. We apologize for the delay in responding and hope it has not caused any inconvenience. In your letter, you state that you are an expert witness attempting to identify the likely reason for several failures of non-refillable tall torch cylinders produced by a U.S. manufacturer and provide photos and videos of the damaged cylinders. You ask whether the photos and videos linked in your letter illustrate a brazed seam of a DOT 39 cylinder that does not meet the requirements set forth in § 178.65(c)(2)(iii). Under § 178.65(c)(2)(iii), “Brazed seams must be assembled with proper fit to ensure complete penetration of the brazing material throughout the brazed joint.” PHMSA cannot determine whether a violation of this standard exists based solely on photographic evidence. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division#

Page 2Pollack 21-0097 From: INFOCNTR (PHMSA) To: Subject: Dodd, Alice (PHMSA); Hazmat Interps FW: Request for Letter of Interpretation re 49 CFR 178.65(c)(2), sent September 22, 2021, product: Non- refillable tall cylinders (Bernzomatic torches) Date: Friday, September 24, 2021 1:47:48 PM Attachments: 2021-09-22 as-DOT Interp_Ltr_Req.pdf Good afternoon Alice, Please see the attached request for a letter of interpretation. Please contact our office with any questions. Best, Sarah (HMIC) From: andrew@eastbaylaw.com <andrew@eastbaylaw.com> Sent: Wednesday, September 22, 2021 9:31 PM To: PHMSA HM InfoCenter <PHMSAHMInfoCenter@dot.gov> Cc: Vega, Joe (PHMSA) <joe.vega@dot.gov> Subject: Request for Letter of Interpretation re 49 CFR 178.65(c)(2), sent September 22, 2021, product: Non-refillable tall cylinders (Bernzomatic torches) CAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or open attachments unless you recognize the sender and know the content is safe. Dear Mr. Kelley, Mr. Vega, DOT/PHMSA: We are submitting a formal request for a letter of interpretation of 49 CFR 178.65(c)(2) with regard to non-refillable tall cylinder containers used for propane, propylene, and MAPP fuels, produced by manufacturer Worthington Cylinder Corporation (only manufacturer in USA). The letter is attached. We are also familiar with the confidentiality procedures in 49 CFR 105.30, and requesting a variance of procedure. The procedure requires submission of a second set of documents with information deleted, which is impracticable on this matter. We request confidentiality of this submission, but understand that the request may be denied, and ask to proceed with processing of this request even if the request for confidentiality is denied. Please kindly acknowledge receipt of this request. Sincerely, Andrew W. Shalaby East Bay Law 7525 Leviston Avenue El Cerrito, CA 94530#

Page 3Tel. 510-551-8500 Fax: 510-725-4950 andrew@eastbaylaw.com#

Page 4correspondence address: 7525 Leviston Avenue El Cerrito, CA 94530 Mr. Shane Kelley Director, Standards and Rulemaking Division U.S. DOT/PHMSA (PHH-10) 1200 New Jersey Avenue, SE East Building, 2nd Floor Washington, DC 20590 phmsa.hm-infocenter@dot.gov Copy to: Mr. Joe Vega Investigator, Western Region US Department of Transportation Pipeline and Hazardous Materials Safety Administration 3401 Centrelake Drive, Suite 550B, Ontario, CA 91761 Office: 909-937-3279 Mobile: 425-531-5861 East Bay Law Andrew W. Shalaby tel. 510-551-8500 fax: 510-725-4950 email: andrew@eastbaylaw.com appointments: 1417 Solano Avenue Albany, CA 94706 Request for Letter of Interpretation re: 49 CFR § 178.65(c)(2) Product: Bernzomatic / Worthington handheld torch cylinders, “non-refillable tall” containing propane and propylene September 22, 2021 Dear Mr. Shane Kelley, DOT: I am an expert witness working with an entity called United Testing Services LLC in California on identifying the likely reason for several failures of non-refillable tall torch cylinders produced by a sole manufacturer in the U.S. The manufacturer is Worthington Cylinder Corporation. The manufacturer also hired its own expert witness to determine the cause of failure of two of the cylinders which severely injured the users. He is Dr. Jeff Pfaendtner in Minnesota, and appears to be a well-qualified metallurgist. The product is the one shown in these photos: ///#

Page 5Request for Letter of Interpretation of 49 CFR § 178.65(c)(2) September 22, 2021 page 2 We submitted an initial report to the Consumer Products Safety Commission on these products. The report may be accessed via this link: Bernzomatic Torch Product Report CPSC This is the full link if needed: https://drive.google.com/file/d/1_fClA3pQiYwXQrMnMCO_MOwb _ zHPAG26/view?us p=sharing Many of these cylinders have failed, causing severe burn injuries and fatalities. These photos show the area of failure of three of the cylinders: Page 2 of 7#

Page 6Request for Letter of Interpretation of 49 CFR § 178.65(c)(2) September 22, 2021 page 3 The inquiry pertains to 49 CFR § 178.65(c)(2), which states: “(iii) Brazed seams must be assembled with proper fit to ensure complete penetration of the brazing material throughout the brazed joint. (iv) Minimum width of brazed joints must be at least four times the thickness of the shell wall. (v) Brazed seams must have design strength equal to or greater than 1.5 times the minimum strength of the shell wall. (vi) Welded seams must be properly aligned and welded by a method that provides clean, uniform joints with adequate penetration.” The manufacturer’s expert, Dr. Pfaendtner, took CT scans and videos which showed that on the two cylinders he tested, there were very large voids in the welding (brazing) compound as shown on these photos: Page 3 of 7#

Page 7Request for Letter of Interpretation of 49 CFR § 178.65(c)(2) September 22, 2021 page 4 Inquiry Photo 1 - Bailey Cylinder Inquiry Photo 2 - Peralta Cylinder The manufacturer’s expert then randomly purchased a cylinder from Lowes and examined it. He found the same voids as shown on this photo: (Continued on Following Page) Page 4 of 7#

Page 8Request for Letter of Interpretation of 49 CFR § 178.65(c)(2) September 22, 2021 page 5 We observed large voids on several of these cylinders and have some in our possession. This is a photo of one of the cylinders containing MAPP fuel: Page 5 of 7#

Page 9Request for Letter of Interpretation of 49 CFR § 178.65(c)(2) September 22, 2021 page 6 Further, I personally found and photographed these two cylinders at Home Depot in CA: Page 6 of 7#

Page 10Request for Letter of Interpretation of 49 CFR § 178.65(c)(2) September 22, 2021 page 7 Worthington Cylinder Corporation advises that it re-works cylinders with inadequate joints. However, it’s expert, Dr. Pfaendtner, provided this statement of his findings with regard to the two re-worked cylinders shown above: “[A]lso, the combining or mixing of brazing and welding processes on a single joint would be inconsistent with proper manufacturing procedures. Anyone with proper knowledge of brazing and welding processes would know that the two processes should not be combined. This would result in an intermixing of the braze alloy with the base metal (copper and steel, respectively in this case), with unpredictable and potentially hazardous consequences with respect to the strength of the joint.” Worthington’s expert’s video clips, about one minute in length or less, show the voids of two of the failed cylinders. Video clips of the voids in the Peralta and Bailey cylinders can be accessed by clicking on these links: Peralta_Avonix_360 https://drive.google.com/file/d/1CO_9BrMoCACBiOv42qv8IMqzZVD-5hQg/vi ew?usp=sharing Bailey_ Avonix_360 https://drive.google.com/file/d/1Pt1x0z6MXDMjz_ItwnbO6ATuVCKeEsFL/view?usp =sharing We therefore respectfully request a letter of interpretation of the above-quoted provisions of 49 CFR § 178.65(c)(2), and in particular subsection (iii), which states: “(iii) Brazed seams must be assembled with proper fit to ensure complete penetration of the brazing material throughout the brazed joint.” Do the photographs and videos provided on this request letter, showing the voids in the weld (brazing compound) of the “Bailey” and “Peralta” cylinders (inquiry photos 1 and 2 above), and Pfaendtner cylinder (lower image on p.5), show voids which can be interpreted to be in full compliance with the requirement for complete penetration of the brazing material throughout the joint? Do the voids otherwise fail to satisfy the requirements? Sincerely, Andrew W. Shalaby Page 7 of 7#