Hazardous Materials: Safety Standards for Preventing and Mitigating Unintentional Releases During the Unloading of Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service

SUMMARY: RSPA proposes to establish a Negotiated Rulemaking Committee

to develop recommendations for alternative safety standards for

preventing and mitigating unintentional releases of hazardous materials

during the unloading of cargo tank motor vehicles in liquefied

compressed gas service. The Committee will develop and adopt its

recommendations through a process of negotiation. The Committee will

consist of persons who represent the interests affected by the proposed

rule, such as businesses that transport and deliver propane, anhydrous

ammonia, and other liquefied compressed gases; manufacturers of DOT

specification MC 330 and MC 331 cargo tank motor vehicles used to

transport liquefied compressed gases; federal safety regulatory

agencies; and state and local public safety and emergency response

agencies. The purpose of this Notice is to invite interested parties to

submit comments on the issues to be discussed and the interests and

organizations to be considered for representation on the Committee.

Also, RSPA is announcing an organizational meeting to be held in

Washington, DC on June 23-24, 1998, to discuss Committee membership,

ground rules, and procedural matters.

DATES: RSPA must receive written comments and requests for

representation or membership on the Committee by July 6, 1998.

ADDRESSES: Address comments to the Dockets Management System, U.S.

Department of Transportation, 400 Seventh Street, SW, Washington, D.C.

20590-0001. Comments should identify the docket number and be submitted

in two copies. Persons wishing to receive confirmation of receipt of

their written comments should include a self-addressed, stamped

postcard. Comments may also be submitted by e-mail to the following

address: ``[email protected]''. The Dockets Management System is

located on the Plaza level of the Nassif Building at the Department of

Transportation at the above address. Public dockets may be reviewed

there between the hours of 10:00 a.m. and 5:00 p.m., Monday through

Friday, except Federal holidays. Comments also may be reviewed on-line

at the DOT Dockets Management System web site at ``http://

dms.dot.gov/.''

FOR FURTHER INFORMATION CONTACT: Jennifer Karim, 202-366-8553, Office

of Hazardous Materials Standards, Research and Special Programs

Administration, Department of Transportation, 400 Seventh Street, S.W.,

Washington, DC 20590-0001; or Nancy Machado, 202-366-4400, Office of

the Chief Counsel, Research and Special Programs Administration, U.S.

Department of Transportation, 400 Seventh Street, S.W., Washington, DC

20590-001.

SUPPLEMENTARY INFORMATION:

I. Background

The Issues

The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)

include provisions designed to promote safe unloading of DOT

specification MC 330 and MC 331 cargo tank motor vehicles (CTMVs).

Among these provisions are requirements for emergency discharge control

systems that will automatically shut down unloading in the event of a

complete hose or pipe separation and for a qualified person to attend

the unloading operation by remaining within sight of the cargo tank and

close enough to manually shut down the unloading operation in the event

of an emergency. However, as a result of a serious unloading accident

in 1996, RSPA has learned that the emergency discharge control systems

currently installed on MC 330 and MC 331 CTMVs do not always function

as designed. Further, RSPA has discovered that many operators of CTMVs

do not comply with the regulatory requirements for attending the

unloading operation. Based on comments received for the HM-225

rulemaking, RSPA intends to reevaluate the current regulatory

requirements. RSPA has issued a temporary regulation designed to permit

cargo tank motor vehicles with non-complying emergency discharge

control systems to continue to operate, and is currently considering

regulatory alternatives to assure the safety of cargo tank unloading

operations.

Emergency Discharge Control Systems

On September 8, 1996, more than 35,000 gallons of propane were

released during delivery at a bulk storage facility in Sanford, North

Carolina. In that incident, the driver became aware of the system

failure when the hose began to oscillate violently while releasing

liquid propane. He immediately shut down the engine, stopping the

discharge pump, but he could not access the remote closure control to

close the internal stop valve. The excess flow feature of the emergency

discharge control system (EDCS) did not function, and propane continued

to be released from the vehicle. Adding to the problem, the back flow

check valve on the storage tank system did not function, resulting in

release of propane from the storage tanks.

Based on preliminary information from the Sanford incident, RSPA

published an advisory notice in the Federal Register on December 13,

1996 [61 FR 65480], to alert persons who design, manufacture, assemble,

maintain, or transport hazardous materials in MC 330 and MC 331 cargo

tank motor vehicles of this problem with the excess flow feature of the

EDCS. Subsequent to publication of the advisory notice, RSPA received

information from the industry indicating that there is widespread

noncompliance with the EDCS requirements of the HMR (49 CFR part

178.337-11(a)) and, further, that equipment that meets the performance

standard for EDCS equipment may not be currently available.

RSPA issued an emergency interim final rule on February 19, 1997,

under Docket No. RSPA-97-2133 (HM-225) [62 FR 7638]. This rule

specified the conditions under which MC 330 and MC 331 CTMVs may

continue to be operated while an EDCS that meets the requirements of

the regulations is developed and implemented. A final rule extending

and revising the provisions of the emergency interim final rule was

issued on August 18, 1997 [62 FR 44038]; a final rule responding to

petitions for reconsideration and clarifying certain provisions was

issued on December 10, 1997 [62 FR 65187]. The December 10 final rule

requires specific marking on affected CTMVs and requires motor carriers

to comply with additional operational controls intended to compensate

for the failure of the EDCS to function as required by the HMR. The

operational controls specified in the December 10 final rule provide an

alternative to compliance with the HMR and are intended to assure an

acceptable level of safety while the industry and

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government continue to work to develop an EDCS that effectively stops

the discharge of hazardous materials from a cargo tank if any attached

hose or piping is separated. The rule is temporary; its provisions will

expire July 1, 1999.

Attendance During Unloading

During the rulemaking that resulted in issuance of the December 10

final rule described above, RSPA discovered that many operators of

CTMVs transporting propane are not complying with provisions of the HMR

that require that a qualified person ``attend'' the unloading of

hazardous materials (49 CFR part 177.834(i)). The cargo tank unloading

attendance requirements specify that a person attending the unloading

operation must be awake, have an unobstructed view of the cargo tank,

and be within 25 feet of the cargo tank. This provision of the HMR is

intended to complement the EDCS requirements in that it is meant to

assure that the person unloading the cargo tank can manually stop the

flow of hazardous material by closing the internal stop valve if there

is a leak in the delivery system. Because many CTMV operators are not

complying with the attendance requirements of the HMR, they are having

difficulty complying with the alternative measures permitted by the

emergency interim final rule.

Challenge to the Alternative Regulatory Requirements

The emergency final rule is currently the subject of ongoing

litigation arising out of two court challenges. The National Propane

Gas Association, Northwest Butane Gas Company, and Huffhunes Gas,

Incorporated, have brought an action in the United States District

Court for the Northern District of Texas to seek preliminary injunctive

and permanent declaratory relief from the December 10 final rule.

Similarly, Ferrellgas, LP; Suburban Propane, LP; Agway Petroleum

Corporation; Cornerstone Propane Partners, LP; and National Propane,

LP, have brought an action in the United States District Court for the

Western District of Missouri seeking declaratory and injunctive relief

from the August 18 final rule. On February 13, 1998, the Missouri court

preliminarily enjoined DOT enforcement of certain provisions of the

alternative requirements, and enforcement of unloading attendance

requirements applicable to small cargo tank motor vehicles

(``bobtails'').

Advance Notice of Proposed Rulemaking

To address the need for a long-term resolution of safety and non-

compliance issues, RSPA issued an advance notice of proposed rulemaking

(ANPRM) under Docket No. RSPA-97-2718 (HM-225A) [62 FR 44059] on August

18, 1997, requesting comments concerning changes to the HMR that go

beyond the scope of the emergency final rule, including new or revised

provisions for operator attendance, hose management, and emergency

discharge controls. Specifically, the ANPRM requested comments on: (1)

whether RSPA should continue to regulate unloading operations of

liquefied compressed gases in CTMVs or relinquish regulatory control in

this area to other federal, state, local and tribal authorities; (2)

the feasibility of developing emergency discharge control systems that

would function in the event of full or partial separations or failures

of pipes and hoses; (3) the ability of the industry to meet a possible

1-, 2-, or 3-year retrofit schedule; (4) standards for the

qualification, testing, and use of hoses used in unloading; and (5)

safety procedures for persons performing unloading operations. To date,

RSPA has received over 150 comments to the ANPRM. The comment period

closed October 17, 1997.

II. Negotiated Rulemaking

RSPA has analyzed the comments received for the December 10 final

rule and the ANPRM and believes that this proposed rulemaking is a good

candidate for negotiated rulemaking. The safety issues are fairly well-

defined, as are the interests that would be affected by a proposed

rule. Moreover, RSPA believes that the face-to-face discussion and open

exchange of ideas that occur during a negotiated rulemaking may promote

more effective communication and development of creative solutions.

Particularly in light of the ongoing litigation, the traditional notice

and comment process for regulations development may not result in a

solution acceptable to all affected interests.

In a negotiated rulemaking, representatives of interests that will

be affected by a regulation meet to discuss the safety problem and

related issues and identify potential solutions. The group attempts to

reach consensus on a proposed solution and prepares a recommendation

for a proposed rule for consideration by the agency. This inclusive

process is intended to make the rule acceptable to all affected

interests and to preclude filing of petitions for reconsideration or

legal challenges that can follow promulgation of a final rule.

The Negotiated Rulemaking Act of 1990, 5 U.S.C. Sec. 561 et seq.,

establishes a framework for conducting negotiated rulemakings. In

September 1993, the National Performance Review issued a recommendation

encouraging consensus-based rulemaking (REG 03). President Clinton

issued Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), which

states the need to reform the current regulatory process into one that

is effective, consistent, and understandable. Section 6(a) of the EO

charges government agencies with providing the public meaningful

participation in the regulatory process. On May 1, 1998, President

Clinton issued a memorandum to heads of executive departments and

agencies encouraging greater use of negotiated rulemaking.

Negotiated rulemakings have been used successfully by the

Department of Transportation, including the Federal Aviation

Administration, the United States Coast Guard, the Federal Highway

Administration, and the National Highway Traffic Safety Administration.

RSPA will soon publish an NPRM addressing the qualification of pipeline

personnel that was developed through negotiated rulemaking. The

Environmental Protection Agency and the Occupational Safety and Health

Administration have also successfully used the process.

The Negotiated Rulemaking Act, 5 U.S.C. Sec. 563(a), recommends

that an agency considering the feasibility of regulatory negotiations

to resolve a specific issue should consider whether:

(1) There is a need for the rule.

(2) There are a limited number of identifiable interests.

(3) These interests can be adequately represented by persons

willing to negotiate in good faith to reach a consensus.

(4) There is a reasonable likelihood that the committee will reach

consensus within a fixed period of time.

(5) The negotiated rulemaking procedure will not unreasonably delay

the notice of proposed rulemaking.

(6) The agency has adequate resources and is willing to commit such

resources to the process.

(7) The agency is committed to use the result of the negotiation in

formulating a proposed rule if at all possible.

The Act authorizes an agency to use the services of a convener to

assist it to determine the feasibility of regulatory negotiation in

specific instances (5 U.S.C. Sec. 563(b)). RSPA contracted with

[[Page 30574]]

a convener to make this determination for a rulemaking that would

resolve the safety issues that were the subject of the August 18, 1997,

ANPRM. With RSPA input, the convener identified interests that will be

significantly affected by a proposed rule and conducted discussions

with persons representing these interests to identify issues of

concern. Based on these discussions, the convener concluded that a

negotiated rulemaking is feasible and appropriate and has a reasonable

likelihood of success. A copy of the convener's final report has been

placed in Docket No. RSPA-97-2718 (HM-225A).

Based on the recommendation of the convener, RSPA has decided to

charter a negotiated rulemaking committee (Committee) under the Federal

Advisory Committee Act (FACA; 5 U.S.C. App. Sec. 1) to develop a

proposed rule for preventing and mitigating unintentional releases

during the unloading of DOT specification MC 330 and MC 331 CTMVs that

transport and deliver liquefied compressed gases.

III. Procedures and Guidelines

The following proposed procedures and guidelines will apply to this

process, subject to appropriate changes made as a result of comments on

this Notice or as determined to be necessary during the negotiating

process.

(A) Notice of Intent to Establish Advisory Committee and Request for

Comment

In accordance with the requirements of FACA, an agency of the

federal government cannot establish or utilize a group of people in the

interest of obtaining consensus advice or recommendations unless that

group is chartered as a federal advisory committee. It is the purpose

of this Notice to indicate RSPA's intent to create a federal advisory

committee, to identify the issues involved in the rulemaking, to

identify the interests affected by the rulemaking, to identify

potential participants who will adequately represent those interests,

and to ask for comment on the use of regulatory negotiation and on the

identification of the issues, interests, procedures, and participants.

(B) Facilitator

Pursuant to Sec. 566 of the Negotiated Rulemaking Act, a

facilitator will be selected to serve as an impartial chair of the

meetings; assist committee members to conduct discussions and

negotiations; and manage the keeping of minutes and records as required

by FACA. RSPA is currently considering persons to serve as facilitator

for the negotiating group. This individual will chair the negotiations,

may offer alternative suggestions toward the desired consensus, will

help participants define and reach consensus, and will determine the

feasibility of negotiating particular issues.

(C) Representation

The Committee will include representatives from DOT and from the

organizations and interests listed below. Each representative may also

name an alternate, who will be encouraged to attend all Committee

meetings and will serve in place of the representative if necessary.

The DOT representative is the Designated Federal Official (DFO) as

required by FACA (5 U.S.C. App. Sec. 10) and will participate in the

deliberations and activities of the Committee with the same rights and

responsibilities as other Committee members. The DFO will be authorized

to fully represent the agency in the discussions and negotiations of

the Committee.

RSPA intends to invite the following organizations and interests to

participate in the negotiated rulemaking by identifying an individual

to serve as a member of the Committee. The organizations listed have

been contacted by the convener and have indicated a willingness to

serve on the Committee. RSPA believes that, in addition to the

organizations listed, there are additional interests that should be

included on the Committee. RSPA recognizes that it may be difficult for

the interests not directly associated with a trade association or

organization to identify an appropriate individual to represent them

and invites comments on how best to assure that they are adequately

represented on the Committee. RSPA will host a meeting in June 1998

(see below) at which those with a common interest in the proposed rule

will be encouraged to meet and agree on a representative to the

Committee.

The organizations and interests that should participate in the

negotiated rulemaking are:

1. National Propane Gas Association.

2. The Fertilizer Institute.

3. National Tank Truck Carriers, Inc.

4. National Fire Protection Association.

5. Small businesses that transport and deliver propane, anhydrous

ammonia, and other liquefied compressed gases.

6. Large businesses that transport and deliver propane, anhydrous

ammonia, and other liquefied compressed gases.

7. Manufacturers of DOT MC 330 and MC 331 specification CTMVs used

to transport liquefied compressed gases.

8. State safety regulatory agencies.

9. State safety enforcement agencies.

10. State/local emergency response and fire services agencies.

RSPA will consider applications for representation from

organizations or interests not appropriately represented by those

listed above. Please identify such interests and organizations if they

exist and explain why such organizations and interests should have

separate representation on the Committee.

RSPA is also considering how best to include manufacturers of cargo

tank components, such as internal self-closing stop valves, emergency

discharge control systems, and remote shut-off systems, in the

negotiated rulemaking process. RSPA believes that component

manufacturers have technical expertise that would be extremely valuable

to the Committee's deliberations. The convener's report examined

several options for integrating component manufacturers into the

negotiated rulemaking process. The convener recommended that they

participate as members of work groups that the Committee may establish

to gather information and develop proposals for specific issues related

to the rulemaking, but not as members of the Committee itself. RSPA has

tentatively decided to accept this recommendation because it would

allow all interested parties to have a significant role in discussions

leading to improved understanding of technical issues and

possibilities, while leaving ultimate decisions to be made by the

agency and those directly responsible for compliance with applicable

regulations. However, RSPA recognizes that other approaches could

accomplish the same end and requests comments on the most appropriate

role for component manufacturers on the Committee.

(D) Applications for Membership

Each application for membership or nomination to the Committee

should include: (i) The name of the applicant or nominee and the

interest(s) such person would represent; (ii) evidence that the

applicant or nominee is authorized to represent parties related to the

interest(s) the person proposes to represent; and (iii) a written

commitment that the applicant or nominee would participate in good

faith. Please be aware that each individual or organization affected by

a final rule need not have its own representative on the Committee.

Rather, each interest must be adequately represented, and the Committee

should be fairly balanced.

[[Page 30575]]

(E) Good Faith

Participants must be committed to negotiate in good faith.

Therefore, it is important that senior individuals within each interest

group be designated to represent that interest. No individual will be

required to ``bind'' the interests he or she represents, but the

individual should be able to represent the interest with confidence.

For this process to be successful, the interests represented should be

willing to accept the final Committee product.

(F) Notice of Establishment

After evaluating comments received as a result of this notice, RSPA

will issue a notice announcing the establishment and composition of the

Committee, unless it determines that such action is inappropriate in

light of comments received. After the Committee is chartered, the

negotiations will begin.

(G) Administrative Support and Meetings

Staff support will be provided by RSPA, and meetings will take

place in Washington, DC, unless agreed otherwise by the Committee.

(H) Consensus

The purpose of the Committee is to develop consensus on an outline

for a proposed rule. ``Consensus'' means the unanimous concurrence

among the interests represented on the Committee, unless the Committee

explicitly adopts a different definition.

(I) Notice of Proposed Rulemaking

The Committee's objective is to prepare a report containing an

outline of its recommendations for a notice of proposed rulemaking.

This report may also include suggestions for specific preamble and

regulatory language based on the Committee's recommendations, as well

as information relevant to a regulatory evaluation and an evaluation of

the impacts of the proposal on small businesses. To this end, RSPA

expects the Committee to address cost/benefit, paperwork reduction, and

regulatory flexibility requirements. If consensus cannot be achieved

for some issues, the report will identify the areas of agreement and

disagreement, and explanations for any disagreement. RSPA will use the

Committee report to draft a notice of proposed rulemaking, regulatory

evaluation, and other analyses, as appropriate.

RSPA will accept the Committee proposal unless it is inconsistent

with the statutory authority of the agency or other legal requirements

or does not adequately address public safety. In that event, the

preamble to an NPRM addressing the issues that were the subject of the

negotiations will explain the reasons for the agency decision to reject

the Committee recommendations.

(J) Final Rule

RSPA may elect to ask the Committee to assist in the evaluation of

comments received to the NPRM, depending on the nature of the comments

received.

(K) Tentative Schedule

RSPA plans to host an organizational meeting to discuss Committee

membership, procedural matters, and ground rules in advance of the

first meeting of the Committee. Once the Committee is established and

selected, RSPA will publish a notice announcing the first two meetings

of the Committee in the Federal Register. Notice of subsequent meetings

will also be published in the Federal Register.

RSPA anticipates that the Committee will meet for up to five two-

day sessions beginning in July 1998. If the Committee establishes

working groups to support its work, additional meetings for the working

groups may be necessary. RSPA expects the Committee to reach consensus

and prepare a report recommending a proposed rule within six months of

the first meeting. The timeframe for the Committee to complete its work

is short because the emergency interim final rule expires July 1, 1999.

RSPA expects to publish an NPRM based on the Committee's

recommendations by February 15, 1999, and a final rule by May 1, 1999.

If unforeseen delays in the anticipated schedule occur, the Research

and Special Programs Administrator may agree to an extension of time if

the consensus of the Committee is that additional time will result in

agreement. The process may end earlier if the facilitator or DFO so

recommends.

(L) Committee Procedures

Under the general guidance of the facilitator, and subject to legal

requirements, the Committee will establish detailed procedures for the

meetings. Meetings of the Committee will be open to the public. Any

person attending the Committee meetings may address the Committee if

time permits or file statements with the Committee.

(M) Record of Meetings

In accordance with FACA requirements, the facilitator will prepare

minutes of all Committee meetings. These minutes will be placed in the

public docket for this rulemaking.

IV. Key Issues for Negotiation

RSPA has reviewed written comments, petitions, incident reports,

and industry operating practices, and has engaged in extensive dialogue

on the issues related to the safe unloading of liquefied compressed

gases from CTMVs. Based on this information, RSPA has tentatively

identified major issues that should be considered in this negotiated

rulemaking. Issues related to transportation and delivery of liquefied

compressed gases in CTMVs not specifically listed in this Notice may be

addressed as they arise in the course of the negotiation. RSPA

understands that these issues are interrelated and is open to a systems

safety approach for managing risk associated with unloading liquefied

compressed gases. RSPA invites comments concerning the appropriateness

of these issues for consideration and whether other issues should be

added. Note that some of these issues were raised in the February 19,

1997, emergency interim final rule and the August 18, 1997, ANPRM.

A. Prevention of Unintentional Releases

The Committee should examine possible preventive measures to reduce

or eliminate the incidence of unintentional releases during unloading.

For example, some commenters to the ANPRM have suggested that RSPA

adopt a rigorous hose management system that assures that delivery

hoses and lines meet high standards for quality, strength, and

durability, and that requires periodic examination and testing to

assure continued suitability for use in the transfer of high risk

hazardous materials. Advocates of such a system say that it could

significantly reduce the number of unloading incidents related to

failures in hoses or hose assemblies. Similarly, the Committee should

consider whether there are preventive measures, such as daily

inspections or periodic testing, that should be implemented for other

parts of the cargo tank delivery system, including pumps, valves, and

piping.

B. Detection of Unintentional Releases

Preventive measures alone cannot assure the safety of cargo tank

unloading operations. Despite the best efforts of the industry and the

government, accidents will happen, and unintentional releases of high

risk hazardous materials such as propane or anhydrous ammonia will

occur. The Committee thus should consider methods to assure that

unintentional releases can be detected and controlled. One such

detection method is provided

[[Page 30576]]

by the current regulatory requirement for continual visual observation

of the cargo tank throughout the unloading process. Alternatives

include remote monitoring and signaling systems, such as sensors,

alarms, and electronic surveillance equipment, or ``patrolling''

whereby the person attending the unloading operation moves between the

storage tank and the cargo tank to assure that each is monitored

throughout the unloading process.

C. Mitigation of Unintentional Releases

Once a leak has been detected, methods to prevent catastrophic

consequences are critical. A passive system for shutting down unloading

when a leak has been detected operates automatically, that is, without

human intervention. Examples include excess flow valves, which are

intended to close the internal self-closing stop valve if the flow rate

exceeds a threshold level, and thermal links, which are intended to

close the internal self-closing stop valve if the temperature reaches a

threshold level. A remote system provides a means to shut down cargo

tank unloading operations using a device that is located on the CTMV

but away from the valve(s) that it operates. Many CTMVs have remote

shut-offs located near the vehicle cab. The remote shut-off may be

manually activated. An off-truck remote system includes a portable

device that can shut down cargo tank unloading operations away from the

CTMV. An off-truck remote is manually activated. The Committee should

evaluate alternatives with a view towards determining which methods or

combination of methods provide the most cost-effective means for

controlling unintentional releases during cargo tank unloading

operations.

IV. Organizational Meeting

RSPA will host a meeting to discuss issues related to establishment

of a Negotiated Rulemaking Advisory Committee for Safety Standards for

Preventing and Mitigating Unintentional Releases During the Unloading

of Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service. The

meeting is scheduled for June 23-24, 1998, in Room 2230 of the U.S.

Department of Transportation Headquarters Building, 400 Seventh Street,

S.W., Washington, DC 20590. On June 23, the meeting will begin at 9:30

a.m. and will adjourn at 4:00 p.m.; on June 24, the meeting will begin

at 9:30 a.m. and will adjourn at 12:30 p.m. RSPA invites all interested

persons to attend. The meeting agenda will include discussion of the

negotiated rulemaking process, designation of members to represent

identified interests, ground rules for Committee deliberations, and

procedural matters. Those who plan to attend this meeting should notify

Jennifer Karim or Susan Gorsky, 202-366-8553, Office of Hazardous

Materials Standards, Research and Special Programs Administration,

Department of Transportation, 400 Seventh Street, S.W., Washington, DC

20590-0001 by June 19, 1998.

Issued in Washington, DC on June 1, 1998, under authority

delegated in 49 CFR Part 1.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety, Research and

Special Programs Administration.

[FR Doc. 98-14879 Filed 6-2-98; 8:45 am]

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