Monday, March 21, 2011

New PHMSA Bulk Transfer Rule – Operating Procedures

To date I’ve addressed the new PHMSA notice of proposed rule making on the bulk loading and unloading of hazardous materials to and from tank trucks in the following blog postings:

PHMSA Bulk Loading NPRM Published
New PHMSA Bulk Transfer Rule - Risk Assessment
New PHMSA Bulk Transfer Rule – Security Issues
Today I would like to start looking at the requirements in the NPRM for developing written operating procedures for the bulk transfer operations involving tank trucks.

General Requirements

The new §177.831(b) would require that anyone that was required to do a bulk transfer risk assessment in paragraph (a) “must develop, maintain, and adhere to an operating procedure for the specific loading or unloading operation based on the completed risk assessment”. According to this new paragraph of the HMR, those procedures must address seven general areas:

• Pre-loading/pre-unloading procedures;
• Loading/unloading procedures;
• Emergency Management; and
• Post-loading/post-unloading procedures
• Facility oversight of carrier personnel;
• Design, maintenance and testing of equipment; and
• Record keeping
PHMSA recognizes that facilities may already be taking measures under other regulations that could be used to fulfill portions of the requirements for these newly required bulk transfer operating procedures. Those regulations include:

• OSHA Process Safety Management – 29 CFR 1910.119;
• EPA Risk Management Program – 40 CFR part 68; and
• EPA Spill Prevention, Control and Countermeasure Program – 40 CFR part 112.
Equipment Design and Maintenance

Section 177.831(b)(5) would essentially apply current HMR design, maintenance, and testing requirements of part 178, subpart J (and §180.416 for compressed gasses) to the facility side of these transfer operations. It clearly specifies that these requirements pertain to transfer equipment and systems “including pumps, piping, hoses, and connections”. This is in keeping with the hazard assessment requirements to address “any device in the loading and unloading system that is designed specifically to transfer product between the internal valve on the cargo tank and the first permanent valve on the supply or receiving equipment” in §177.831(a).

There is a potential hole in the requirements of this section. Sub-paragraph (b)(5) specifically states that each “person who conducts these operations [emphasis added] must develop and implement a periodic maintenance schedule”. This would seem to imply that facilities that just supply such equipment for the use of carriers to actually conduct the operations would not be required maintain that equipment.

The discussion in the preamble specifically contradicts this apparent oversight stating that:

“PHMSA is proposing to require facilities that provide transfer equipment that is connected directly to CTMVs and used to load or unload product from the tank, to implement maintenance and inspection programs consistent with existing standards for hoses carried aboard CTMVs. At a minimum, the operational procedure must include a hose maintenance program.” (76 FR 13321)
Courts typically take cognizance of the explanatory comments in the preamble to these rules, but it sure makes it difficult for people to comply with regulations when these ‘minor’ details are left out of the regulation.

Record Keeping

Section 177.831(b)(7) sets for the record keeping requirements for these operational procedures and the supporting hazard assessment. Actually, the requirement to keep a copy of the hazard assessment with the operating procedures is found in §177.831(a)(3). Facility based procedures must be available at the facility where the loading and/or unloading is conducted.

Carrier based procedures must be available in the truck involved in the loading/unloading operation. In fact, PHMSA is modifying their information collection request (76 FR 13324) for shipping papers (OMB Control No. 2137-0034) to include the requirement for this document. This certainly implies that these procedures would be carried with the shipping papers in the driver’s door of the truck.

Pre-approval of the operating procedures is not required but these procedures must be produced upon demand to any “authorized official of a Federal, State, or local government agency at reasonable times and locations”.

Other Requirements

I’ll discuss some of the other requirements for these operating procedures in future blogs in this series.

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