{"operation":"document","citation":"23-0022","title":"KC Partners Group — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2024-05-09","effective_on":null,"summary":"23-0022 response to KC Partners Group concerning 171.8, 172.800.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0022.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0022.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0022","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-05/230022.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMay 9, 2024\nMr. Joseph E. Connelly\nPartner\nKC Partners Group\nP.O. Box 1551\nAnnandale, VA 22003-1551\nReference No. 23-0022\nDear Mr. Connelly:\nThis letter is in response to your March 9, 2023, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) pertaining to the applicability of the\nsecurity plan requirements to bulk packagings containing a residue of a hazardous material. In\nyour email, you request clarification on the definition of a “residue” and present scenarios\nspecifically relating to the practicability of the unloading process.\nWe have paraphrased and answered your questions as follows:\nQ1. You ask about the meaning of the phrase “maximum extent practicable” in the definition\nof “residue” in § 171.8. Specifically, you ask whether certain scenarios—such as\nequipment failure, running out of storage space at a facility, or needing to equalize the\ntank car pressure—would result in a tank car being designated as containing a residue.\nA1. As defined in § 171.8, a residue means “the hazardous material remaining in a packaging,\nincluding a tank car, after its contents had been unloaded to the maximum extent\npracticable and before the packaging is either refilled or cleaned of hazardous material\nand purged to remove any hazardous vapors.” The “maximum extent practicable” means\nthat the proper procedure for unloading has been executed to full effect, and the\nremaining material that cannot be removed by the successful unloading process qualifies\nas residue. The scenarios you describe in your email are not the full execution of the\nunloading process, as various obstacles prevented the completion of that process. If the\npackagings described in your email had been emptied to the maximum extent practicable,\nthe hazardous material would be considered a residue by definition.\nQ2. You ask whether a company is required to create and maintain a security plan if it\nunloads a placarded tank car, uses the contents solely in their unloading process, then\nreturns the placarded tank car containing a residue as defined in § 171.8.\nA2. The answer is that it depends. The security plan requirements apply to persons who offer\nfor transportation in commerce or transport hazardous materials in the quantities and\nthresholds established by § 172.800(b). If the placarded tank cars containing residue meet\nany of the quantity thresholds as described in § 172.800(b), a security plan is required. A\n\n<<<PAGE 2>>>\n\nsecurity plan must cover personnel, unauthorized access, and en route security—that is,\nthe security of a covered hazardous materials shipment from its origin to its destination,\nincluding shipments stored incidental to movement.\nQ3. You ask whether a railroad must create and maintain a security plan if it only stores rail\ncars containing a residue of a hazardous material.\nA3. See answer A2. The security plan requirements apply to persons who offer for\ntransportation in commerce or transport hazardous materials in the quantities and\nthresholds established by § 172.800(b). If the railroad performs any functions in\ntransportation or incidental to transportation and meets the quantity thresholds established\nin § 172.800(b), a security plan is required.\nQ4. You ask what the consequences are for not having a security plan when shipping a\nresidue—see § 171.8—exceeding the weight and volume requirements in § 172.800(b).\nA4. Each person who offers a hazardous material for transportation or transports a hazardous\nmaterial in commerce is responsible for compliance with the requirements of the HMR,\nor a special permit, approval, or registration issued under the HMR, with respect to any\nregulated function that the person performs or is required to perform. Penalties for\nviolations of the HMR are assessed on a case-by-case basis and depend on a number of\nfactors, including the nature, circumstances, extent, and gravity of the violation. As of\nDecember 28, 2023, under 49 CFR Part 107, Appendix A to Subpart D, the civil penalty\nfor knowingly violating the Federal hazardous materials transportation law (49 U.S.C.\n5101, et. seq.) or the HMR is not more than $99,756 for each violation, and $232,762 if\nthe violation results in death, serious illness, severe injury to any person, or substantial\ndestruction of property. There is no minimum civil penalty, except for a minimum civil\npenalty of $601 for violations relating to training. See § 107.329 and § 107.333. The\nmonetary values of these penalties are adjusted annually, with the latest revisions\noccurring (and effective) on December 28, 2023.1\nCriminal penalties may include fines and/or imprisonment for not more than 5 years,\nexcept in any case in which the violation involves the release of a hazardous material\nwhich results in death or bodily injury to any person, in which case the maximum amount\nof imprisonment shall be not more than 10 years.\nI hope this information helpful. Please contact us if we can be of further assistance.\nSincerely,\nSteven Andrews\nActing Chief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n1 88 FR 89551 (Dec. 28, 2023). Available at: https://www.federalregister.gov/d/2023-28066\n\n<<<PAGE 3>>>\n\nJacobson\n23-0022\nFrom: INFOCNTR (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Hazmat Interps\nSubject: FW: Request for Interpretation\nDate: Thursday, March 16, 2023 1:01:13 PM\nAttachments: RFI - 172.800.pdf\nHi Alice,\nPlease see the attached interpretation request.\nLet us know if you need anything.\nRegards,\n-Breanna\n-----Original Message-----\nFrom: Joseph Connelly <jecnnlly@verizon.net>\nSent: Thursday, March 9, 2023 2:03 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>; jecnnlly@verizon.net; mail@kcpartners.us\nSubject: Request for Interpretation\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nPlease see attached concerning my request for interpretation concerning\n49 CFR Subpart I and clarification on the definition of residue in 49 CFR §171.8. If you need clarification, please\ncontact me via email at either of the addresses in the TO: line.\nAs always, thank you for your consideration...\nJoe Connelly - KC Partners Group\n\n<<<PAGE 4>>>\n\nMarch 9, 2023\nJoesph E. Connelly\nPartner\nKC Partners Group\nPO Box 1551\nAnandale VA 22003-1551\nStandards and Rulemaking (PHH-10)\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nEast Building, 2nd Floor\n1200 New Jersey Ave., SE\nWashington, DC 20590\nTransmitted via email to infocntr@dot.gov\nTo whom it may concern:\nI am writing to request a Department of Transportation (DOT) interpretation concerning\nthe applicability of a DOT Security Plan in Subpart I (49 CFR §§172.800 - 804) to\nresidue tank cars. There are two (2) industry types or practice I would like you to\naddress in particular. I would also like to address the definition of Residue in §171.8 to\nclearly understand how a residue quantity in a tank car is determined, as it impacts the\ninterpretations I am requesting.\nPart of my confusion in this matter emanates from reviewing the interpretations\npreviously published concerning Subpart I as there appears to be an over-reliance on\nplacarding. As I am certain you are also aware, tank cars containing a residue of a\nhazardous material are required to be placarded when moving reverse route, with a few\nexceptions.\nA residue, as it is defined in 49 CFR §171.8 “means the hazardous material remaining\nin a packaging, including a tank car, after its contents have been unloaded to the\nmaximum extent practicable and before the packaging is either refilled or cleaned of\nhazardous material and purged to remove any hazardous vapors.”\nWhat does “to the maximum extent practical” mean?” If unloading equipment fails\nduring the unloading process can the car be considered to be unloaded to the maximum\nextent practical? If the facility runs out of storage space in their facility and leaves a\nquantity of hazardous material in the package, is this unloaded to the maximum extent\npractical? In cases where unloading can only be accomplished through equalization of\nthe car, is that considered to the maximum extent practical? Please address this for\nresidue tank cars whose quantities exceed the limits specified in the definition.\nThe two industries or Industry practices considering residue tank cars are as follows:\n\n<<<PAGE 5>>>\n\nThe first industry would be any company that unloads loaded, placarded tank cars and\nreturns them as last containing a hazardous material (residue). The second industry\nwould be a railroad engaged only in the storage of residue tank cars. These would be\ncars that arrive and leave the facility as residue, last contained…\nMy primary interest is only those hazard classes which are required to have a security\nplan when they are shipped in a large, bulk quantity and identified as such in the\napplicability section of Subpart I. These are listed below as follows:\n8) A large bulk quantity of a Division 4.2 material meeting the criteria for Packing Group\n(3) A large bulk quantity of Division 2.1 material.\n(4) A large bulk quantity of Division 2.2 material with a subsidiary hazard of 5.1..\n(6) A large bulk quantity of a Class 3 material meeting the criteria for Packing Group I or\nII.\nI or II.\n(9) A quantity of a Division 4.3 material requiring placarding in accordance with subpart\nF of this part.\n(10) A large bulk quantity of a Division 5.1 material in Packing Groups I and II;\nperchlorates; or ammonium nitrate, ammonium nitrate fertilizers, or ammonium nitrate\nemulsions, suspensions, or gels.\n(12) A large bulk quantity of Division 6.1 material (for a material poisonous by inhalation\nsee paragraph (5) above).\n.(16) A large bulk quantity of Class 8 material meeting the criteria for Packing Group I.\nIn previous federal registers, it is noted that a “large bulk quantity” refers to a quantity\ngreater than 3,000 kg (6,614 pounds) for solids or 3,000 liters (792 gallons) for liquids\nand gases in a single packaging such as a cargo tank motor vehicle, portable tank, tank\ncar, or other bulk container.\nMy secondary interest is of those listed as any quantity as follows. For these\ncommodities; again listed below, is a security plan required or does the term residue on\na shipping paper supersede the requirement?\n(5) Any quantity of a material poisonous by inhalation, as defined in §171.8 of this\nsubchapter.\n\n<<<PAGE 6>>>\n\n(9) A quantity of a Division 4.3 material requiring placarding in accordance with subpart\nF of this part.\n(14) A quantity of uranium hexafluoride requiring placarding under §172.505(b).\nTo reiterate, based upon the above information;\nDoes a company have to promulgate and maintain a security plan if it unloads a tank\ncar and uses the contents solely in their process, then returns the tank car as a residue,\nlast containing that hazardous material in a placarded rail car?\nDoes a railroad have to promulgate and maintain a security plan if it stores only cars\ncontaining a residue of a hazardous material?\nFinally, if the answer to the two (2) questions above is no, what are the consequences\nfor exceeding the weight and volume requirements defined as residue by §171.8. Or, if\nno security plan is required, what would be the consequences...\nThank You for your consideration\nJoseph E. Connelly\nOn behalf of KC Partners Group","truncated":false,"body_characters":11569}