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.

New PHMSA Bulk Transfer Rule – Security Issues

In a blog posting earlier this week I discussed some of the considerations that would need to be included in the hazard assessment to be required by the newly proposed PHMSA rules for bulk loading and unloading of hazardous materials to and from tank trucks. Readers of this blog might have been surprised that I didn’t discuss the review of a potential terrorist threat as one of the hazards that would need to be included in the proposed hazard assessment. The reason is simple; PHMSA specifically excludes security issues from consideration in their NPRM.

In the preamble to this proposed rule PHMSA states that: “Security and incidental storage of bulk transport tanks are beyond the scope of this rulemaking action.” (76 FR 13317) While I personally object to this exclusion as being short sighted, I understand the reason that PHMSA has taken this position. After all, Congress has given TSA responsibility for transportation related security issues (while not providing the resources necessary to enforce those requirements, but that’s another issue). Furthermore, since the described hazmat transfers, by definition, take place at facilities, the highest risk facilities are already supposed to consider security risks under the CFATS program.

Having said that; PHMSA does briefly address at least one security issue in their discussion of the types of things that the risk assessment should address. In the preamble where they discuss the conditions that might affect the safety of the transfer operation PHMSA lists the following items that should be addressed in the risk assessment: “access control [emphasis added], lighting, ignition sources, physical obstructions, and weather condition” (76 FR 13320). ‘Access control’ is certainly a security issue.

Access Control and Transfer Operations

While not specifically outlined in the NPRM, there are two different types of access control that will need to be addressed in the risk assessment and the subsequent operating procedures. The first deals with the access of the tank truck to the facility and the second deals with the access of the driver. While the two would seem to be intimately intertwined, they need to be considered separately.

The truck entering the facility for transfer operations needs to be confirmed to be the truck and trailer that were supposed to be sent to the facility for that particular transfer. First, since the carrier was supposed to ensure that a risk assessment was done on the trailer before it arrived at the facility to ensure that it is safe for the load that it is to carry, it is important to check that the arriving tank wagon is the one upon which that risk assessment was done.

This can only be done by having the carrier independently communicate to the facility the identity of the tank wagon destined for a particular load. The person who clears the vehicle to enter the facility needs to have a listing of vehicles that will be coming into the facility with appropriate identifying information. That information needs to be in the hands of the facility before the vehicle arrives.

Before the transfer operations begin the vehicle needs to be checked to ensure that there is no new damage to the vehicle that would negate the previously done risk assessment. High-risk chemical facilities will also check to ensure that there are no improvised explosive devices placed on the vehicle. While this is essentially a requirement for high-risk facilities, all facilities should do at least a cursory inspection for this type of risk.

Access control for the driver of the vehicle is as important as checking the identity of the vehicle. Particularly where a driver is part of the transfer operations, the facility needs to insure that the driver is one who is appropriately trained in those operations as required by this NPRM. This is most easily done by requiring that the carrier provide certification on their vehicle notification that the identified driver is trained in accordance with the provisions of §172.704(a)(2)(iii) outlined in this NPRM.

High-risk chemical facilities will have additional requirements under the personnel surety requirement of RBPS #12. For drivers transferring the hazmat loads described in this NPRM will be required to have a Hazmat endorsement on their CDL, which requires a background check conducted by the TSA. Verifying the driver’s identity against that document and against the listed driver on the vehicle notification document should satisfy the RBPS #12 requirements.

Carrier Transfer Operations

Where the carrier has sole responsibility for transfer operations at a facility, there is still a facility responsibility for controlling access to their property. In fact, since the facility is surrendering control of the safety of the transfer operation to the carrier, it is probably more important to put strong access controls in place to ensure that at least the right person and the right vehicle are involved in the process.

New PHMSA Bulk Transfer Rule - Risk Assessment

As I mentioned last Friday, PHMSA has finally (this was first addressed in January 2008 – 73 FR 916) published the NPRM for their bulk hazardous material loading and unloading regulations for cargo tank motor vehicles. One of the basic requirements for this new rule is that a risk assessment must be completed for all hazmat tank truck loading and unloading operations.

Who is Responsible

A new section, §177.831, is added to the Hazardous Materials Regulations (HMR) laying new requirements on each “person who loads, unloads, or provides transfer equipment to load or unload a hazardous material to or from a cargo tank motor vehicle”. This statement is clear, but its application in the real world might be a tad more difficult. HAZMAT loading operations are normally conducted by facility employees but the person who actually unloads a tank truck at the receiving location may be a facility employee, an employee of the supplier providing the material, or a truck driver working for a third party.

Generally speaking the hazmat employer responsible for the loading or unloading operations is responsible for conducting the risk assessment. There are confounding factors that may spread some of that responsibility around. Where the hazmat employee conducting the transfer operations is not a facility employee and the facility requires “unique operational procedures” there is a dual responsibility for the assessment. If a facility provides transfer equipment, a hose for example, for a transfer operation conducted by a separate hazmat employer, there is again a dual responsibility for the conduct of the risk assessment.

In fact, even where facility personnel are responsible for transfer operations, “the motor carrier must conduct a risk assessment and develop operating procedures that are specific to the cargo tank involved in the transfer operation” (76 FR 13319).

It seems that the only case where there is not some sort of dual responsibility for conducting the risk assessment is “where the motor carrier is primarily responsible for the safety of the transfer operation, such as at a business or residence”. The preamble explains that this is typically found at gasoline delivery to commercial gas stations or propane deliveries to homes.

Risk Assessment

Section 177.831(a) describes the newly required risk assessment as a “a systematic analysis to identify and evaluate the hazards associated with the specific loading or unloading operation”. It subsequently explains that the “analysis must be appropriate to the complexity of the process and the materials involved in the operation” {§177.831(a)(2)} and then lists three specific areas that should be addressed:

“(i) The characteristics and hazards of the material to be loaded or unloaded;

“(ii) Measures necessary to ensure safe handling of the material, such as temperature or pressure controls; and

“(iii) Conditions that could affect the safety of the loading or unloading operation, including access control, lighting, ignition sources, and physical obstructions.”

For those unloading operations that are entirely the responsibility of the carrier, PHMSA does not intend for this rule to require a location specific risk assessment to be required where large numbers of such locations would make that requirement impractical. They specifically state in the preamble to the NPRM that such carriers would not need to “conduct a separate risk assessment of each residence or retail outlet (i.e., gas station) to which it delivers propane or gasoline, but may instead assess the overall risk of such operations and develop operating procedures that apply generally to such operations” (76 FR 13320).

Equipment to be Assessed

The wording of the description of the equipment that is intended to be included in the safety assessment is very important. The new regulatory language states “including [emphasis added] 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 (e.g., pumps, piping, hoses, connections, etc.)” {§177.831(a). [NOTE: there is a missing closing parenthesis at the end of this description in the NPRM.]

It is important to remember that the word ‘including’ in this context means that the description that follows is not the only definition of the term; just a common example being used for illustrative purposes. This is an important distinction. Other equipment could also be part required assessment. For example, vent lines allowing for pressure equalization between the cargo tank and the storage tank, gas lines used to pressurize the cargo tank during unloading operations, and loading scales used to gauge the amount of material added to the cargo tank.

Even so, I think the example provided in the current language is overly restrictive. At one facility where I worked we had permanent unloading lines for all of the raw materials that we received into bulk storage tanks. One end of the stainless steel flex lines were attached to facility piping by a flanged connection. At the other end of the flex line was a manual valve. A strict interpretation of the exemplar provided in the would thus limit the area of concern for the assessment to the short section of on-truck piping between the internal valve and the manual valve on the end of the flex line.

Characteristics and Hazards

The term “characteristics and hazards of the material” is going to be very important to the implementation of this regulation. If PHMSA narrowly interprets this terminology to mean those ‘characteristics and hazards’ that are addressed in the HMR then the hazard assessment will be narrowly focused. The resulting assessments will be limited to looking at things like flammability, corrosivity and toxicity; all important characteristics and hazards to be sure.

PHMSA needs to expand the definition of this term to include reactivity and expand it beyond the narrow ‘no water’ definition of reactivity found in the HMR. Numerous unloading incidents occur every year when the wrong material is off-loaded into a storage tank. These reactions can range from the violently exothermic reactions of a strong acid and base; the reactions that explosively release gasses like bleach and aqua ammonia; to the slower but just as catastrophic polymerization reactions that produce enough heat over time to produce uncontrollable decomposition reactions.

These types of reactions are not covered in the HMR because they are a miniscule risk in transit. When these reactions happen in loading operations they are limited in scope because the incompatible material being loaded on-top-of is typically very small in volume relative to the material being loaded. If the catastrophic reaction does take place it seldom moves outside the front gate.

At fixed facilities where material is being added to a storage tank the possibility of sufficient quantity of the ‘other chemical’ being present is greatly increased. The problem is frequently compounded by the fact that the level in the ‘wrong tank’ has not been properly checked and the tank is overfilled. With hazardous chemicals where the storage tank is vented back to the tank wagon to avoid toxic releases that overfilling can force the reacting products back into the tank wagon, expanding the hazard area significantly.

Use of Assessment

The importance of this hazard assessment cannot be over stated. The results of this assessment will become the basis for the development of the operating procedures that will be used to ensure that these transfer operations are conducted in a safe manner. I’ll look at the requirements for those procedures in a future blog post.

PHMSA Bulk Loading NPRM Published

The Pipeline and Hazardous Material Safety Administration (PHMSA) today published a notice of proposed rulemaking (NPRM) proposing safety rules for bulk loading and unloading operations for cargo tank motor vehicles; railcar loadings are not covered. The rule (HM-247) would require the completion of a risk assessment for these operations and the subsequent development of safe operating procedures based upon this assessment. An enhanced training requirement is also included in the proposed rule. PHMSA specifically notes that: “Security and incidental storage of bulk transport tanks are beyond the scope of this rulemaking action.” (76 FR 13317)

Public comments on this proposed rule are requested. Such comments can be filed via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2007-28119). Such comments need to be submitted by May 10, 2011.

I’ll look at the details of the requirements of the proposed rule in a future blog posting.