[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Rules and Regulations]
[Pages 36802-36807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17124]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 177 and 180
[Docket No. RSPA-97-2718 (HM-225A)]
RIN 2137-AD07
Hazardous Materials: Revision to Regulations Governing
Transportation and Unloading of Liquefied Compressed Gases (Chlorine)
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; response to petition for reconsideration; limited
stay of implementation date; correction; request for comments.
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SUMMARY: On May 24, 1999, RSPA published a final rule to revise
regulations applicable to the transportation and unloading of liquefied
compressed gases. The revisions included new inspection, maintenance,
and testing requirements for cargo tank discharge systems; revised
attendance requirements applicable to liquefied petroleum gas and
anhydrous ammonia; and revised requirements for cargo tank emergency
discharge control equipment to provide a clear performance standard for
passive emergency discharge control equipment that shuts down unloading
operations without human intervention. The revised requirements also
provide for a remote capability for certain cargo tanks to enable a
person attending the unloading operation to shut off the flow of
product when away from the motor vehicle during delivery. This document
responds to a petition for reconsideration, delays implementation of
one provision of the final rule as it applies to chlorine unloading
operations, and corrects an instruction in the final rule.
DATES: Effective Dates: This final rule is effective July 8, 1999. The
effective date for the final rule published on May 24, 1999, remains
July 1, 1999. Implementation Date: The implementation date for
Sec. 177.840(t) as it applies to chlorine cargo tanks is delayed until
January 1, 2000.
Comment Date: Submit comments on or before September 7, 1999.
ADDRESSES: Address written comments to the Dockets Management System,
U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW,
Washington, DC 20590-0001. Identify the docket number RSPA-97-2718 at
the beginning of your comments and submit two copies. If you want to
receive confirmation of receipt of your comments, include a self-
addressed, stamped postcard. You may also submit comments by e-mail by
accessing the Dockets Management System on the Internet at ``http://
dms.dot.gov'' or by fax to (202) 366-3753.
The Dockets Management System is located on the Plaza Level of the
Nassif Building at the Department of Transportation at the above
address. You can review public dockets there between the hours of 9:00
a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. In
addition, you can review comments by accessing the docket management
system through the DOT home page (http://dms.dot.gov).
FOR FURTHER INFORMATION CONTACT: Jennifer Karim or Susan Gorsky, Office
of Hazardous Materials Standards, Research and Special Programs
Administration, (202) 366-8553; or Nancy Machado, Office of the Chief
Counsel, Research and Special Programs Administration, (202) 366-4400.
SUPPLEMENTARY INFORMATION:
I. Background
On May 24, 1999, the Research and Special Programs Administration
(RSPA; ``we'') published a final rule under Docket No. RSPA-97-2718
(HM-225A) (64 FR 28030). The final rule revised regulations applicable
to the transportation and unloading of liquefied compressed gases. The
revisions include new inspection, maintenance, and testing requirements
for cargo tank discharge systems, including delivery hose assemblies,
and revised unloading attendance requirements applicable to liquefied
petroleum gas and anhydrous ammonia to take account of certain unique
operating characteristics.
Further, the final rule revised requirements for cargo tank
emergency discharge control equipment to provide a clear performance
standard for passive emergency discharge control equipment that shuts
down unloading operations without human intervention. The revised
requirements also provide for a remote capability for certain cargo
tanks to enable a person attending the unloading operation to shut off
the flow of product when unloading duties require the person to be away
from the motor vehicle during delivery.
The final rule allows two-years for development and testing of
emergency discharge control technology. After two years, newly
manufactured MC 331 cargo tank motor vehicles must be equipped with
emergency discharge control equipment that conforms to the performance
standards; MC 330, MC
[[Page 36803]]
331 and certain nonspecification cargo tank motor vehicles already in
service must be retrofitted at their first scheduled pressure test
after the two-year period. These revisions are intended to reduce the
risk of an unintentional release of a liquefied compressed gas during
unloading, assure prompt detection and control of an unintentional
release, and make the regulatory requirements easier to understand and
comply with.
II. Negotiated Rulemaking Process
The May 24, 1999 final rule was developed through a negotiated
rulemaking. In a negotiated rulemaking, representatives of interests
affected by a regulation meet as an advisory committee to discuss the
safety issues and to identify potential solutions. The group attempts
to reach consensus on a proposed solution and prepares a recommendation
for a notice of proposed rulemaking to be made by the agency. This
process is intended to give parties the opportunity to find creative
solutions, improve the information data base for decisions, produce
more acceptable rules, enhance compliance, and reduce the likelihood of
court challenges.
For this rulemaking, in addition to the Department of
Transportation (DOT), the negotiated rulemaking committee consisted of
persons who represent the interests affected by this rulemaking,
including businesses that transport and deliver liquefied petroleum
gases, anhydrous ammonia and other liquefied compressed gases;
manufacturers and operators of cargo tanks and vehicle components; and
state and local public safety and emergency response agencies.
From the beginning, our goal has been an open and inclusive process
that would enable anyone with an interest in the rulemaking to provide
information and to comment on proposals. The document announcing our
intention to establish a negotiated rulemaking committee (63 FR 30572;
June 4, 1998) listed those interests that we believed should be
represented on the Committee and invited commenters to identify other
interests that should also be represented. The document identified the
Compressed Gas Association and National Tank Truck Carriers as
organizations that should be included on the Committee to represent the
interests of manufacturers and transporters of liquefied compressed
gases other than liquefied petroleum gas and anhydrous ammonia. We
received no comments suggesting that additional representation should
be considered.
Once the Committee was established, interested parties who were not
selected for membership were invited to attend Committee meetings,
which were open to the public, and to caucus with Committee members
representing their interest on the Committee. Interested parties could
also address the Committee, submit written comments on issues of
concern, and participate in the informal work groups that were
established by the Committee to address certain technical issues and
draft regulatory text. Representatives of the Chlorine Institute
participated in several meetings of the negotiated rulemaking
committee. They were provided with draft rulemaking documents and
encouraged to provide us with comments and suggestions to address any
concerns. Their suggestion to incorporate the Chlorine Institute's
Pamphlet 57 entitled ``Emergency Shut-off Systems for Bulk Transfer of
Chlorine'' into the HMR was adopted, as were several suggestions for
changes to the draft to reflect the unique nature of chlorine unloading
operations. These suggestions were part of the notice of proposed
rulemaking (NPRM) published on March 22, 1999 (64 FR 13856).
The Chlorine Institute submitted formal comments on the NPRM on
April 21, 1999. On April 28, 1999, we met informally with
representatives of the Chlorine Institute to clarify their comments and
to discuss alternatives for addressing their concerns. All but one of
the comments submitted by the Chlorine Institute were accommodated in
the May 24 final rule.
III. Petition for Reconsideration
On June 17, 1999, the Chlorine Institute filed a petition for
reconsideration and motion for partial stay of the final rule. (The
petition for reconsideration and motion for partial stay of the final
rule is reprinted as Appendix A to this final rule. The attachments to
the Chlorine Institute's petition can be reviewed by accessing the
Docket Management System through the DOT home page (http://dms.dot.gov)
or in person at the Dockets Management System at the address indicated
above.) The Chlorine Institute seeks reconsideration of two provisions
of the May 24, 1999 final rule as they apply to cargo tanks used to
transport and deliver chlorine. Specifically, the Chlorine Institute
requests reconsideration of the requirement in Sec. 173.315(n)(2) for
emergency discharge control equipment that operates without human
intervention to be certified by a Design Certifying Engineer (DCE). In
addition, the Chlorine Institute seeks reconsideration and a stay of
the requirement in Sec. 177.840(t) that, until a chlorine cargo tank is
equipped with emergency discharge control equipment that conforms to
requirements in the final rule, the qualified person attending the
unloading operation must remain within arm's reach of a means to stop
the flow of product.
IV. Petition Partially Denied
In Sec. 173.315(n), the May 24, 1999 final rule established
emergency discharge control system requirements for cargo tanks in
liquefied compressed gas service. Cargo tanks transporting materials
that are poisonous by inhalation, including chlorine, are required to
be equipped with a means to automatically stop product flow without
human intervention within 20 seconds of an unintentional release caused
by a complete delivery hose separation, also referred to as a passive
shut-down capability. This section also makes clear that the design for
a passive shut-down capability, including systems installed prior to
July 1, 2001, must be certified by a DCE. The certification must
consider any specifications of the original component manufacturer and
must explain how the passive shut-down capability operates. It must
also outline the parameters (e.g., temperature, pressure, types of
product) within which the passive shut-down capability is designed to
operate. All components of the discharge system that are integral to
the design must be included in the certification.
The Chlorine Institute asserts that the May 24, 1999 final rule
imposes a ``new, unnecessary and wholly unjustified set of additional
regulatory requirements'' for cargo tanks used to transport and deliver
chlorine. The Chlorine Institute states that, because chlorine is
unloaded by pressure rather than by pump, the emergency discharge
control system on chlorine cargo tanks, of which an excess flow valve
is a key component, has operated successfully for 40 years. In light of
its ``flawless'' unloading experience, the Chlorine Institute states
that there is no possible benefit to requiring the emergency discharge
control system on a chlorine cargo tank to be certified by a DCE. The
Chlorine Institute also notes that the excess flow valve used on
chlorine cargo tanks was extensively tested in the 1960s before it was
put into widespread service. According to the Chlorine Institute, test
results (included with the petition as an appendix) indicate that there
will always be sufficient internal pressure in the cargo tank to assure
that the excess flow valve will operate. The Chlorine Institute
continues, ``Given the fact that the excess flow valve was designed
many years ago, there is considerable doubt that the valve itself could
or
[[Page 36804]]
would be certified by a `Design Certifying Engineer' who would have had
no part in its design. While the design certification requirement may
make sense in some circumstances, it plainly makes no sense in the
chlorine situation, and would add nothing to the safety of chlorine
unloading.''
The Chlorine Institute asserts that excess flow valves have
functioned successfully in chlorine cargo tanks since the 1960s and
that tests conducted before they were placed in widespread service
demonstrate that an excess flow valve will close at a pressure well
below the pressure differential that would be experienced in a complete
hose separation during unloading. However, the requirement in the May
24 final rule is for certification of the emergency discharge control
system, of which the excess flow valve is only one component. System
certification was a key issue in the HM-225A negotiated rulemaking. As
individual component manufacturers noted, an excess flow valve is only
required to close if its flow rating, as established by the
manufacturer, is exceeded. Manufacturers of excess flow valves who
participated in the negotiated rulemaking advised that, in addition to
restrictions in downstream piping caused by pumps, other variables may
restrict the circumstances under which an excess flow valve will
operate. Such variables include other restrictions in the discharge
system (e.g., branching, elbows, reductions in pipe diameter), low
operating pressures, or a partially closed valve downstream from the
excess flow valve, all of which restrict the rate of flow through the
excess flow valve. For this reason, the final rule included the
requirement that the entire emergency discharge control system rather
than individual components of the system be certified to meet the new
performance standard. All components of the discharge system that are
integral to the design must be included in the certification. Further,
the certification must specify the parameters (e.g., temperature,
pressure, types of product) within which the system is designed to
operate.
Because of the requirement that the entire emergency discharge
control system rather than individual components of that system be
certified, the May 24 final rule recognizes that component
manufacturers may be reluctant to provide a performance certification
for a system of which their component is only a part. Thus, the final
rule requires that the certification be provided by a DCE, who may be
employed by a cargo tank manufacturer, a component manufacturer, a
cargo tank owner or operator, or a third party. The DCE need not have
had any part in the actual design of the emergency discharge control
system being certified. Rather, the DCE is expected to review design
specifications and test results and to conduct any additional tests
deemed necessary to verify that the system operates as designed within
the parameters specified for its operation. The design for each type of
emergency discharge control system is certified once by a DCE; provided
the system is installed according to the certification, the single DCE
certification serves for all cargo tanks equipped with that type of
system.
The Chlorine Institute proposes that we remove cargo tanks
unloading chlorine by pressurization from the May 24 final rule
requirements. This part of the petition for reconsideration is denied.
We recognize that unintentional releases of liquefied compressed gases
as a result of complete hose separations during unloading are
infrequent occurrences. However, an unintentional release of a gas that
is poisonous by inhalation, such as chlorine, which is a PIH Hazard
Zone B material, may have very serious consequences if it is not
controlled quickly. The requirement in the May 24 final rule for a
passive shut-down capability on chlorine cargo tanks is designed to
address potential risks to public safety associated with low-
probability/high consequence events. The Chlorine Institute has not
provided sufficient information to justify its request for an exception
from this requirement.
As an alternative, the Chlorine Institute suggests that RSPA
clarify that, ``by virtue of [its] 40 years of flawless operation'' and
based on the results of tests conducted on railroad tank car systems in
the 1960s, the chlorine excess flow valve is certified within the
meaning of the May 24 final rule. This part of the petition for
reconsideration is also denied.
We do not believe that DOT certification of components or systems
installed on cargo tanks is either appropriate or necessary. The
principle of cargo tank design certification by a DCE is well-
established in the HMR, and this method for independent certification
of compliance with the cargo tank regulations works well.
Further, certification of the excess flow valve would not meet the
requirements for certification established in the May 24 final rule.
First, the rule requires certification of emergency discharge control
systems, not individual components of those systems. Second, the
certification must include a description of each emergency discharge
control system and the parameters within which the system is designed
to operate. Neither of these requirements is satisfied by the Chlorine
Institute's proposal.
V. Petition Partially Granted and Request for Comments
Section 177.840(t) of the May 24, 1999 final rule requires that,
until a cargo tank in chlorine service is equipped with emergency
discharge control equipment in conformance with the final rule, the
qualified person attending the unloading operation must remain within
arm's reach of a means to stop the flow of product. The Chlorine
Institute notes that chlorine is unloaded from a valve located on top
of the cargo tank. To be within arm's reach of a means to shut down
unloading, a person must ``perch precariously atop than [sic] tank for
the several hours necessary to complete the unloading process.''
The May 24 final rule requires chlorine being unloaded from cargo
tanks after July 1, 2001 to comply with procedures set forth in section
3 of the Chlorine Institute's Pamphlet 57. (This provision does not
apply to unloading of cargo tanks that are equipped with emergency
discharge control systems certified in accordance with Sec. 173.315(n)
of the May 24 final rule.) Facilities equipped for unloading in
conformance with Pamphlet 57 have a remote location from which the
unloading operation can be shut down in the event of an unintentional
release or other emergency. For these facilities, the requirement to be
within arm's reach of a means to shut down unloading is met when the
person attending the unloading operation is within arm's reach of the
remote shut-down location. However, not all facilities are equipped for
unloading in conformance with Pamphlet 57.
We agree with the Chlorine Institute that additional time is
necessary to consider alternatives to the requirement in
Sec. 177.840(t) that the person attending a chlorine cargo tank be
within arm's reach of a means to shut down the unloading operation.
Therefore, the petition for a stay of the implementation date of this
provision of the May 24 final rule is granted. The implementation date
for Sec. 177.840(t), as it applies to chlorine unloading at facilities
that do not conform to Pamphlet 57, is delayed to January 1, 2000.
During that time, we will consider viable alternatives that may be
proposed by interested parties for monitoring the unloading of chlorine
from cargo tanks that are not equipped with an emergency discharge
control system
[[Page 36805]]
certified in conformance with Sec. 173.315(n) of the May 24 final rule.
In addition, we are requesting comments on issues raised in the
Chlorine Institute's petition for reconsideration. Specifically, we
wish to know:
(1) How many cargo tanks are affected by the transition provision
in Sec. 177.840(t) as it applies to chlorine unloading?
(2) How many facilities at which unloading of cargo tanks is
performed by carrier personnel are not yet equipped for unloading in
conformance with Pamphlet 57?
(3) How many unloading operations are conducted at such facilities
each year?
(4) Are there other ways to conduct chlorine unloading operations
that will achieve an equivalent level of safety as required by
Sec. 177.840(t)?
(5) Are all cargo tanks engaged in transporting chlorine fitted
with the same piping configuration, or are there significant
differences?
(6) What other issues should we consider in resolving this issue?
VI. Correction
In the May 24, 1999 final rule, instruction 19 incorrectly
redesignated several paragraphs in Sec. 180.407. This redesignation is
corrected in this final rule.
VII. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. This final rule is not
considered significant under the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034).
RSPA did not prepare a regulatory evaluation for this final rule
addressing the delay in implementation of the transition provision
affecting monitoring of chlorine unloading operations. However, a final
regulatory evaluation was prepared in support of the final rule
published on May 24, 1999. The final regulatory evaluation is available
for review in the public docket.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism'').
Federal hazardous materials transportation law, 49 U.S.C. 5101-5127,
contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts state, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(i) the designation, description, and classification of hazardous
material;
(ii) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(iii) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(v) the design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses covered subjects under item (ii) above
and preempts state, local, or Indian tribe requirements not meeting the
``substantively the same'' standard. Federal hazardous materials
transportation law provides at Sec. 5125(b)(2) that if RSPA issues a
regulation concerning any of the covered subjects RSPA must determine
and publish in the Federal Register the effective date of Federal
preemption. The effective date may not be earlier than the 90th day
following the date of issuance of the final rule and not later than two
years after the date of issuance. Thus, RSPA lacks discretion in this
area, and preparation of a Federalism assessment is not warranted. The
effective date of Federal preemption for these requirements is October
6, 1999.
C. Executive Order 13084
This final rule has not been analyzed in accordance with the
principles and criteria in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because revised rules
and regulations in this final rule are not expected to significantly or
uniquely affect communities of Indian tribal governments, the funding
and consultation requirements of this Executive Order do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. RSPA
conducted this assessment for the final rule published May 24, 1999.
The delay in implementation for the transition provision on monitoring
unloading operations from chlorine cargo tanks does not change the
conclusions reached in that assessment. Thus, I hereby certify that
this final rule will not have a significant economic impact on a
substantial number of small businesses.
E. Paperwork Reduction Act
This final rule imposes no new information collection burdens. The
requirements for information collection included in the May 24, 1999
final rule are approved by the Office of Management and Budget under
OMB control number 2137-0595. Under the Paperwork Reduction Act of
1995, no person is required to respond to a collection of information
unless it displays a valid OMB control number.
F. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN containing in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
G. Unfunded Mandates Reform Act
This final rule imposes no mandates and thus does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995.
H. Impact on Business Processes and Computer Systems
Many computers that use two digits to keep track of dates will, on
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900.
This glitch, the Year 2000 problem, could cause computers to stop
running or to start generating erroneous data. The Year 2000 problem
poses a threat to the global economy in which Americans live and work.
With the help of the President's Council on Year 2000 Conversion,
Federal agencies are reaching out to increase awareness of the problem
and to offer support. We do not want to impose new requirements that
would mandate business process changes when the resources necessary to
implement those requirements would otherwise be applied to the Year
2000 problem.
This final rule does not mandate business process changes or
require modifications to computer systems. Because this rule apparently
does not affect organizations' ability to respond
[[Page 36806]]
to the Year 2000 problem, we do not intend to delay the effectiveness
of the requirements.
I. Environmental Assessment
RSPA did not perform an environmental assessment of this final
rule. RSPA did conduct an environmental assessment for the final rule
published May 24, 1999. The delay in implementation for the transition
provision on monitoring unloading operations from chlorine cargo tanks
does not change the conclusions reached in that assessment.
List of Subjects
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 180
Hazardous materials transportation, Motor carriers, Motor vehicle
safety, Packaging and containers, Railroad safety, Reporting and
recordkeeping requirements.
In consideration of the foregoing, we are amending 49 CFR parts 177
and 180 as follows:
PART 177--CARRIAGE BY PUBLIC HIGHWAY
1. The authority citation for part 177 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53
2. In Sec. 177.840, in paragraph (t) the last sentence is revised
to read as follows:
Sec. 177.840 Class 2 (gases) materials.
* * * * *
(t) * * * For chlorine cargo tanks unloaded after December 31,
1999, the qualified person must remain within arm's reach of a means to
stop the flow of product except for short periods when it is necessary
to activate controls or monitor the receiving container.
* * * * *
PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS
3. In rule document 99-12860, beginning on page 28030 in the issue
of Monday, May 24, 1999, make the following correction:
Sec. 180.407 [Corrected]
On page 28051, column 2, in amendatory instruction 19., beginning
in the second line, correct ``existing paragraphs (h)(4) through (h)(8)
are redesignated as paragraphs (h)(5) through (h)(9), respectively'' to
read ``existing paragraph (h)(4) is redesignated as paragraph (h)(5)''.
Issued in Washington, DC on June 29, 1999, under authority
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Administrator.
Appendix A to the Preamble
Expedited Consideration Requested
Before the United States Department of Transportation, Research and
Special Programs Administration
Docket No. RSPA-97-2718 (HM-225A)
Hazardous Materials: Revision to Regulations Governing Transportation
and Unloading of Liquefied Compressed Gases
Motion for Partial Stay of the Final Rule and Petition of the Chlorine
Institute, Inc. for Reconsideration and Clarification of the Final Rule
I. Introduction
Pursuant to the provisions of 49 CFR Sec. 106.35, the Chlorine
Institute, Inc., hereby files this Motion for Partial Stay and
Petition for Reconsideration and Clarification of the final rule
issued in this docket.
The final rule issued on May 24, 1999, (64 F.R. 28030) creates a
new, unnecessary, and wholly unjustified set of additional
regulatory requirements for MC 330 and MC 331 cargo tank motor
vehicles when unloading chlorine. These new regulatory requirements
are unsupported by the record of this docket, and ignore 40 years of
flawless chlorine unloading experience. The Chlorine Institute, Inc.
submits that these requirements should either be withdrawn, or so
modified as to remove their more onerous provisions.
II. Background of the Rulemaking
Section 178.337-11(a)(1)(i) of Title 40 CFR provides that with
respect to cargo tank motor vehicles used to transport chlorine, as
well as other compressed gases:
Each internal self-closing stop valve and excess flow valve must
automatically close if any of its attached hoses are sheared off or
if any attached hoses or piping are separated.
In it final rule in Docket HM-225 issued August 18, 1997, RSPA
noted that ``efforts undertaken by the affected industries (not
including the chlorine industry) to achieve increased efficiency in
the unloading of hazardous materials by the installation of pumps on
specification MC 330 and MC 331 cargo tank motor vehicles prevent
emergency discharge control systems from operating properly under
all temperatures and pressures routinely encountered during normal
conditions or transportation.'' (62 F.R. 44039) In the same
document, RSPA noted that the problems encountered by MC 330 and MC
331 cargo tank motor vehicles using pumps to unload did not exist
when pressure, rather than pumps, were employed. Thus, RSPA held:
Unloading systems that employ pressure rather than a pump to
unload such as a gas compressor mounted on specification MC 330 and
MC 331 cargo tank motor vehicles should not be affected by the
problem identified with unloading of liquefied compressed gases by
use of pumps, provided the operating pressure of the compressor, the
flow rate of product through valves, piping, and hose, and the
setting of the emergency feature conform to requirements in
Sec. 178.337-11(a)(1)(v). Vehicles unloaded by pressure and
conforming to the requirements of Sec. 178.337-11(a)(1) are not
subject to the temporary regulations specified in Sec. 171.5. (62
F.R. 44039)
Throughout the HM-225A rulemaking procedures that followed the
HM-225 final rule, there was never any doubt but that chlorine is
unloaded under pressure within the meaning of the HM-225 final rule.
Further, there never has been any question but that the excess flow
valves used on MC 330 and MC 331 cargo tank motor vehicles
transporting chlorine (CI Drawings 101 and 104) comply fully with
Sec. 178.337-11(a)(1)(v). In addition, the Chlorine Institute is
unaware of, and the record herein fails to disclose, a single
incident in the 40 years these valves have been in use in chlorine
service where such excess flow valve has failed to operate properly.
III. The Final Rule
While the HM-225 and HM-225A rulemaking procedures focused
almost entirely on the failures of pump unloading systems involving
liquefied petroleum gas and anhydrous ammonia, the final rule places
regulatory requirements on pressure unloading chlorine cargo tank
motor vehicles as well. It is not surprising therefore that the
final rule is ill-considered and erroneous as it applies to chlorine
unloading.
The final rule impacts chlorine motor vehicle unloading in two
fundamental respects. First, the new section 173.351(n)(2) requires
that a ``Design Certifying Engineer'' certify that the excess flow
valve so long and so successfully used on MC 330 and MC 331 cargo
tank motor vehicles is, in fact properly designed and will operate
within the necessary parameters to satisfy the rule.
Secondly, section 177.840(t) requires that until the chlorine
cargo tank transfer system is certified, a qualified person must be
within arms length of the chlorine cargo tank's valve located on the
top of the cargo tank. Thus, the qualified person must perch atop
the tank to meet the requirement. It must be noted, of course, this
requirement does not apply when the tank is being unloaded after the
tank has been separated from the motive power unit and that unit has
left the facility.
With respect to the design certification requirement for
chlorine cargo tanks, the final rule is wholly unwarranted. With
respect to the arms length requirement, it is not only unwarranted,
it creates an unsafe condition while only partially attaining its
ill-considered objective.
IV. Reasons for Reconsidering the Final Rule
As noted above, the problems that gave rise to the HM-225 rules,
and ultimately to this docket, have nothing to do with the unloading
of chlorine. Chlorine, unloaded by pressure rather than by pump, has
not been
[[Page 36807]]
released during the unloading process. The excess flow valves have
operated successfully for 40 years, and there is no allegation that
chlorine cargo tank vehicles equipped with those valves do not
comply fully with Sec. 178.336-11(a)(1)(i).
What possible benefit, therefore, follows from a certification
by a ``Design Certifying Engineer'' that the valve will properly
operate when it has properly operated for 40 years? The answer, of
course, is none.
In addition to its flawless operation, the excess flow valve
used on chlorine cargo tank motor vehicles was extensively tested in
the 1960's before it was put into widespread service. As the
materials attached hereto as Appendix A demonstrate, the excess flow
valve, peer CI Drawings 101 and 104 will close at a pressure of 9
psig, a value well below the pressure differential that would be
experienced in a complete hose separation during unloading. Since,
as previously noted, chlorine is unloaded by pressurizing the tank,
there will always be sufficient internal pressure to ensure that the
excess flow valve will operate as required.
Given the fact that the excess flow valve was designed many
years ago, there is considerable doubt that the valve itself could
or would be certified by a ``Design Engineer'' who would have had no
part of its design. While the design certification requirement may
make sense in some circumstances, it plainly makes no sense in this
chlorine situation, and would add nothing to the safety of chlorine
unloading.
The arms length requirement discussed above suffers from two
major flaws. First, the majority of chlorine MC 330 and MC 331 tanks
are unloaded after the motive power has been detached and has left
the receiving facility. Thus, under sections 171.8, 177.834, and
178.337-11, the detached tank is no longer a cargo tank within the
meaning of the Hazardous Materials Regulations, and is no longer
subject to the provisions of the final rule.
Of greater importance is the fact that, unlike propane and
ammonia tanks, the chlorine tank is unloaded from a valve located
atop the tank. Accordingly, for a person to be within arms length of
the valve during unloading he or she must perch precariously atop
the tank for the several hours necessary to complete the unloading
process. This requirement reflects the fact that the chlorine tank
was never really considered during the rulemaking process, and
appears in the final rule unexpectedly and inappropriately. Further,
since the arms length provisions of the final rule become effective
on July 1, 1999, a serious safety issue is present.
In view of the safety concerns raised with respect to chlorine
unloading, the final rule should be stayed insofar as it would
require persons to stand atop chlorine MC 330 or MC 331 cargo tank
motor vehicles during chlorine unloading.
V. Proposed Solution
The Chlorine Institute participated in this rulemaking in only a
minor way for the reasons described above. The Institute has no
desire to complicate this matter to any degree greater than is
necessary to overcome the obvious and serious problems discussed
herein. Thus, the Institute proposed to resolve the problems created
by the final rule in the simplest and least disruptive way possible.
The genesis of the problems raised by the final rule is the
requirement that the chlorine excess flow valve be certified by a
``Design Certifying Engineer.'' A clarification of the final rule by
RSPA that acknowledges that the chlorine excess flow valve, by
virtue of the materials attached in Appendix A, and by virtue of the
40 years of flawless operation, has been certified within the
meaning of the rule would eliminate all problems associated with
implementation of the rule.1
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\1\ It must be noted, of course, that the excess flow valve
discussed herein is designed to, and does operate in the event of a
complete separation of the unloading hose. In this regard it fully
satisfies the provisions of 49 CFR Sec. 178.337-11(a)(1)(1).
Chlorine Institute Pamphlet 57 referenced by RSPA in this rule,
contains a system for dealing with incidents that do not involve a
complete separation and therefore do not trigger the requirements of
Sec. 178.337-11(a)(1)(i).
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To be sure, such a clarification would not deal with the obvious
problem that the rules should never have addressed pressurized
unloading in the first place. But, at least it would eliminate the
serious practical problems facing the industry as a result of the
ill-advised inclusion of the chlorine in the rulemaking process, and
would remove the requirement for a qualified person to perch atop a
cargo tank for the minimum period of three necessary to unload a
chlorine cargo tank.
VI. Conclusion
In view of the foregoing, the Institute submits that the final
rule be modified so as to remove cargo tanks and cargo tank motor
vehicles unloading chlorine by pressurization from the requirements
of the rule. In the alternative, the Institute requests that RSPA
clarify the final rule so as to determine that chlorine excess flow
valves in use on MC 330 and MC 331 chlorine cargo tank motor
vehicles have been certified within the meaning of the rule.
In addition, inasmuch as the arms length requirements of the
rule become effective on July 1, 1999, and enforcement of those
provisions could cause serious risks to persons unloading chlorine,
the Institute moves that those requirements be stayed while this
petition is reviewed by RSPA.
Respectfully submitted,
Paul M. Donovan,
LaRoe, Winn, Moerman & Donovan, 3900 Highwood Court, N.W., Washington,
DC 20007, (202) 298-8100, Attorney for Petitioner.
Dated at Washington, DC, June 17, 1999.
[FR Doc. 99-17124 Filed 7-7-99; 8:45 am]
BILLING CODE 4910-60-P
