January 24, 2002

Dr. Robert McGuire
Associate Administrator for Hazardous Materials Safety
Dockets Management System
U.S. Department of Transportation
Room PL 401
400 Seventh St., SW
Washington, DC 20590-0001

Re: DOT Docket No. RSPA-98-4952 (HM-223); "Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage" (Notice of proposed rulemaking published June 14, 2001)

Dear Dr. McGuire:

The Dangerous Goods Advisory Council (DGAC), also known as the Hazardous Materials Advisory Council, is an international, non-profit, educational organization devoted to promoting safety in the domestic and international transportation and handling of hazardous materials, substances and wastes. DGAC represents shippers, carriers by all modes, container manufacturers and reconditioners, emergency response and waste clean-up companies, and twenty-two trade associations involved in the field of hazardous materials transportation.

We appreciate the effort that RSPA has spent in drafting the proposed rule on loading, unloading and storage of hazardous materials during transportation; however, we disagree with your proposed application of DOT's jurisdiction, in particular for bulk packagings. In our view, DOT specification (and marked as such) bulk packagings are "instruments of commerce" and should be under DOT's jurisdiction at all times and in all places. Obviously, we are not suggesting there be a vacuum in the regulation of safe loading, unloading, handling and storage of bulk packagings, but that such regulations be promulgated by one Federal agency, RSPA.

Considering the fact that there are more than 700,000 bulk packagings in service - ranging from IBCs and small nurse tanks used in support of agriculture to large tank cars used to transport LP gas - their safe transportation and handling under a nationally uniform set of safety requirements in and through more than 30,000 jurisdictions is of paramount importance.

One of the most vexing jurisdictional problems raised by the NPRM relates to tank car storage. For a loaded tank car, it shouldn't matter whether the product has actually been consigned to a specific destination or not. Nor should the time the car has been in storage be a factor since it is not unusual for a car to be placed on a storage track for several months before a carrier takes possession. In many cases the product is sold, but the buyer has not determined where it is to be delivered; however, it is known that the material will be transported to another location prior to storage. The same could be said for other DOT specification bulk packagings such as cargo tanks, portable tanks, and IBCs. We believe all of these packagings should be regarded as "instruments of commerce" and be subject to DOT jurisdiction at all times, except when integrated into a plant operating system.

Further, tank cars containing the residue of a hazardous material also may be stored following unloading as they are staged for reloading according to the availability of loading sites, product availability and customer orders. Tank cars containing residues are secured and otherwise prepared for transport according to the HMR. These tank cars should remain subject to DOT jurisdiction while in storage.

One example that serves to illustrate our serious concern regarding the proposal relates to the applicability of OSHA's regulations to cargo tanks used to transport liquefied petroleum gases when they are in loading and unloading facilities. DOT regulations authorize the use of Specification MC 330 cargo tanks to transport such gases. OSHA regulations (29 CFR 1910.110) do not. And DOT regulations recognize use of remotely activated emergency shut-off systems on cargo tanks for the same gases; OSHA regulations do not. Is DOT suggesting that the industry should be subject to the jurisdiction of two Federal agencies with conflicting requirements? If so, how will DOT resolve those conflicts?

As recognized above, additional DOT standards are needed to adequately address safety in the operation of hazmat transportation related facilities. These include emergency response procedures, worker protection and safety precautions to be followed during loading and unloading operations. To fill in these gaps, we suggest adoption of risk management plans along the lines of the OSHA process management guidelines (29 CFR 1910.119) that would apply to transportation operations at facilities. When developed, such guidelines along with industry consensus standards could be incorporated by reference into the HMR. Together, they would serve as the framework for the needed elements of a complete safety program. We envisage the standard to be the product of a joint DOT/DGAC effort. This could be done either by development of an industry consensus standard with DOT input or by a negotiated rulemaking.

After you have had a chance to consider this proposal, we would appreciate an opportunity to meet with DOT representatives to review the concept we are suggesting in greater detail.

Sincerely,

Michael Morrissette
Vice President