Hazardous Materials: Emergency Restriction/Prohibition Order |
|---|
|
Terry D. Wolf
Federal Motor Carrier Safety Administration
September 16, 2014
[Federal Register Volume 79, Number 179 (Tuesday, September 16, 2014)]
[Rules and Regulations]
[Pages 55403-55406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21968]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Part 109
Federal Motor Carrier Safety Administration
49 CFR Parts 171-180
[Docket No. FMCSA-2014-0343; Docket No. PHMSA-2014-0116]
Hazardous Materials: Emergency Restriction/Prohibition Order
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Emergency Restriction/Prohibition Order.
-----------------------------------------------------------------------
SUMMARY: This document announces Emergency Restriction/Prohibition and
Out-of-Service Order CA-2014-9002-EMRG, issued to National Distribution
Services, Inc., TankServices, LLC, and Carl Johansson. This Order was
issued by the Field Administrator for FMCSA's Western Service Center
and prohibits the filling, offering, transportation, and welded repair
of cargo tank vehicles by National Distribution Services, Inc.,
TankServices, LLC, and Carl Johansson. Additionally these parties are
prohibited from conducting inspections and/or testing of any cargo tank
or cargo tank motor vehicle unless such inspection and/or testing is
conducted by a Registered Inspector.
DATES: The Emergency Restriction/Prohibition Order became effective on
August 14, 2014.
ADDRESSES: You may view material bearing the Federal Docket Management
System (FDMS) Docket ID FMCSA-2014-0343 and PHMSA-2014-0116 using any
of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov.
Follow the on-line instructions for viewing material.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday,
except Federal holidays. The on-line Federal document management system
is available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
Privacy Act: Anyone may search the electronic form of all material
received into any of our dockets by the name of the individual
submitting material (or of the person signing the material, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the Federal Docket
Management System published in the Federal Register on January 17, 2008
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
FOR FURTHER INFORMATION CONTACT: For information concerning this
activity, contact Nancy Jackson, Attorney, Office of the Chief Counsel,
FMCSA, (303) 407-2350. If you have questions on viewing or submitting
material to the docket, contact Docket Services, telephone (202) 366-
9826.
SUPPLEMENTARY INFORMATION:
I. Legal Basis
This document is based on 49 U.S.C. 5121(d), which authorizes the
Secretary of Transportation to issue or impose emergency restrictions,
prohibitions, recalls, or out-of-service orders without notice or an
opportunity for a hearing if the Secretary determines that a violation
of 49 U.S.C. chapter 51 or a regulation issued under that chapter, or
an unsafe condition or practice constitutes an imminent hazard, as
defined in 49 U.S.C. 5102(5). The Secretary's authority to carry out
section 5121(d) has been delegated to the Federal Motor Carrier Safety
Administration by 49 CFR 1.87(d)(1). The procedures implementing the
Secretary's emergency authority are codified in 49 CFR 109.17; the
procedures for petitions of review of emergency orders are specified in
49 CFR 109.19; this Federal Register document is required pursuant to
49 CFR 109.19(f)(2).
II. Text of Emergency Restriction/Prohibition CA-2014-9002-EMRG
This document constitutes an Emergency Restriction/Prohibition
[[Page 55404]]
Order and Out-of-Service Order (``Order'') by the United States
Department of Transportation (USDOT) pursuant to 49 U.S.C. 5121 and 49
CFR 109.17; and pursuant to delegation of authority to the
Administrator, Federal Motor Carrier Safety Administration (FMCSA),
United States Department of Transportation (Administrator). This Order
is issued to National Distribution Services, Inc., Tank Services, LLC
Carl Johansson, and any other person(s) that use or have in their
possession cargo tanks and/or cargo tank motor vehicles used, or that
have been used, to transport hazardous materials, and that are owned,
leased and/or otherwise operated by or for National Distribution
Services, Inc., specifically including, but not limited to, the cargo
tanks set forth in Appendices A and B. Upon information derived from an
ongoing investigation, the Administrator has found that violations of
Federal Hazardous Materials law (49 U.S.C. 5101, et seq.) and/or the
Hazardous Materials Regulations (49 CFR Parts 171 to 180) (HMRs), an
unsafe condition, or an unsafe practice is causing or otherwise
constitutes an imminent hazard.\1\
---------------------------------------------------------------------------
\1\ The ongoing investigation progressed from its initial focus
on TankServices, LLC, the facility initially associated with the May
2014 cargo tank explosion to National Distribution Services, Inc.
when the investigator discovered its association with TankServices,
LLC, and that Carl Johansson was conducting operations as National
Tank Distribution Services, Inc. Carl Johansson is known to the
Department from his prior companies involved in transportation of
hazardous materials using cargo tanks, including Atlas Bulk, Inc. in
Montebello, California, where a catastrophic explosion occurred in
September 1993 resulting in the death of a welder when the welder,
at Carl Bradley (Brad) Johansson's direction, conducted unauthorized
welding on a gasoline cargo tank that had not been cleaned and
purged.
---------------------------------------------------------------------------
Effective Immediately Any Person Identified by This Order
(1) Is prohibited from filling and/or offering, and/or requiring,
permitting or allowing any other person to fill and/or offer, any cargo
tank or cargo tank vehicle owned, leased, and/or operated by or on
behalf of National Distribution Services, Inc., specifically including,
but not limited to, the cargo tanks listed in Appendices A and B of
this Order, for the transportation of hazardous materials;
(2) Is prohibited from transporting, and/or requiring, permitting
or allowing any other person to transport, hazardous materials in any
cargo tank or cargo tank motor vehicle owned, leased, and/or operated
by or on behalf of National Distribution Services, Inc., specifically
including, but not limited to, the cargo tanks listed in Appendices A
and B of this Order;
(3) Is prohibited from conducting any welded repair to any DOT
specification cargo tank, specifically including, but not limited to,
the cargo tanks listed in Appendices A and B of this Order;
(4) Is prohibited from requiring, permitting or allowing any other
person to conduct any welded repair to any cargo tank or cargo tank
motor vehicle unless such repair is conducted in accordance with 49 CFR
180.413; and
(5) Is prohibited from conducting any inspection and/or testing on
any cargo tank or cargo tank motor vehicle and/or permitting any person
to conduct any inspection and/or testing on any cargo tank or cargo
tank motor vehicle unless such person has current valid registration in
accordance with 49 CFR Part 107, and inspections and tests are
conducted by a Registered Inspector familiar with DOT-specification
cargo tanks, trained and experienced in the use of the inspection and
testing equipment needed, and has the training and experience required
to meet the definition of ``registered inspector'' as set forth in 49
CFR 171.8.
Also Effective Immediately the Cargo Tanks Identified in Appendices A
and B of This Order Are Declared Out-of-Service
(1) The cargo tanks identified in Appendices A and B are removed
from transportation until they are brought into compliance with this
Order and the HMRs;
(2) Any person in possession of, or responsible for, any of the
cargo tanks listed in Appendices A and/or B must remove the cargo tank
from transportation until it is brought into compliance with this Order
and the HMRs; and
(3) A cargo tank listed in Appendices A and/or B may only be moved
to the nearest location where it may be brought into compliance and
only after written notice is made to the Field Administrator no less
than 72 hours prior to the move and such notice includes:
a. The current location of the cargo tank;
b. A description of the contents of the cargo tank;
c. The location where the cargo tank will be moved;
d. The registration number of the cargo tank facility to which the
cargo tank will be moved; and
e. The name of the Registered Inspector that will test and/or
inspect the cargo tank.
Within Forty-Eight (48) Hours of the Issuance of This Out-of-Service
Order, National Distribution Services, Inc. Shall Provide in Writing
the Current Location of Each Cargo Tank Listed in Appendix A and
Appendix B
This Order shall have the force and effect of any other Order
issued by FMCSA. This Order applies to, and is binding on, National
Distribution Services, Inc., TankServices, LLC, Carl Johansson, any
other aliases or affiliated or successor companies, and all owners,
officers, directors, members, employees, contractors, subhaulers, and
agents. This Order may attach to and apply to any entity established
and/or used to evade or avoid the consequences of this Order. This
Order also applies to cargo tanks identified in Appendices A and B of
this Order.
This Order is effective immediately and remains in effect unless
withdrawn in writing by the Administrator or her designee, or until it
otherwise expires by operation of law.
I. Jurisdiction
National Distribution Services, Inc. and Carl Johansson offer for
transportation or transport hazardous materials in commerce within the
United States, and inspect, test, and/or repair DOT specification cargo
tanks; Carl Johansson directs the operation of National Distribution
Services, Inc. TankServices, LLC inspects, tests, and/or repairs DOT
specification cargo tanks; Carl Johansson directs the inspection, test,
and repair of DOT specification tanks. The cargo tanks listed in
Appendices A and B are used by National Distribution Services, Inc. for
the transportation of hazardous materials. Accordingly, National
Distribution Services, Inc., TankServices, LLC and Carl Johansson are
therefore ``persons,'' as defined by 49 U.S.C. 5102(9), in addition to
being ``persons'' under 1 U.S.C. 1. Cargo tanks and cargo tank motor
vehicles are packages under 49 U.S.C. 5121(c)(1)(C). National
Distribution Services, Inc., TankServices, LLC and Carl Johansson, and
cargo tanks and cargo tank motor vehicles offered, used, inspected,
tested and/or repaired by them, are subject to the authority and
jurisdiction of the Administrator, including the authority to impose
emergency restrictions, prohibitions, recalls, or out-of-service
orders, without notice or an opportunity for hearing, to the extent
necessary to abate the imminent hazard (49 U.S.C. 5121(d)).
[[Page 55405]]
II. Basis for Order
National Distribution Services, Inc. owns, leases and/or otherwise
controls DOT specification cargo tanks and cargo tank motor vehicles
used to transport hazardous materials in commerce in the United States.
Carl Johansson manages and directs National Distribution Services,
Inc.'s operations. TankServices, LLC, at the request of and/or under
the direction of National Distribution Services, Inc. and/or Carl
Johansson, tests, inspects and/or repairs DOT specification cargo
tanks.
On May 6, 2014, a cargo tank catastrophically exploded while
employees of National Distribution Services, Inc. and/or TankServices,
LLC were welding on the shell of the cargo tank, resulting in the death
of one of the welders and serious injuries to the other. The welding
repair work was directed by Carl Johansson for National Distribution
Services, Inc. Investigation conducted by FMCSA shortly after the
explosion indicated that the cargo tank had not been cleaned and purged
prior to the welding.\2\ On July 8, 2014 FMCSA initiated an
investigation on TankServices, LLC and determined that TankServices,
LLC is co-owned by an employee of National Distribution Services, Inc.,
and she is paid to be a payroll service issuing TankServices, LLC
checks to National Distribution Services, Inc. employees. Upon reliable
and credible information received in the course of the investigation,
FMCSA learned that welded repairs had been performed on the shell and/
or head of DOT specification cargo tanks by or for National
Distribution Services, Inc. Further, the welded repairs are not made in
accordance with the requirements of 49 CFR 180.413, the repairs were
not certified by a Registered Inspector, and neither National
Distribution Services, Inc. nor TankServices, LLC is a repair facility
holding a National Board Certificate of Authorization ``R'' stamp or a
valid ASME Certificate of Authorization ``U'' Stamp.\3\ The
Investigator discovered at least 7 other DOT specification cargo tanks
for which welded repairs have been conducted which were not made in
accordance with the requirements of 49 CFR 180.413; the cargo tanks are
currently being used to transport hazardous materials.
---------------------------------------------------------------------------
\2\ Pursuant to 49 CFR 180.413(a)(2), prior to each repair, the
cargo tank or cargo tank motor vehicle must be emptied of any
hazardous material lading, if used to transport flammable or toxic
lading, it must be sufficiently cleaned of residue and purged of
vapors so any potential hazard is removed.
\3\ In accordance with 49 CFR 180.413, any repair work on DOT
specification cargo tank must be performed by a repair facility
registered with USDOT and holding a valid National Board Certificate
of Authorization for the use of the National Board ``R'' stamp; any
repair of a non-ASME stamped DOT specification cargo tank may be
performed by a cargo tank manufacture holding a valid ASME
Certificate of Authorization for the use of the ASME ``U'' stamp or
a repair facility holding a valid National Board ``R'' stamp.
---------------------------------------------------------------------------
Further, National Distribution Services, Inc. and its contractors
and subhaulers are filling or allowing to be filled, offering and/or
transporting hazardous materials, including petroleum distillate fuel
products such as crude oil, gasoline and jet fuel, in cargo tanks that
have not been inspected and tested as required. At least 35 of the DOT
specification cargo tanks owned, leased, and/or operated by National
Distribution Services, Inc. being used to transport hazardous materials
on a daily basis have not been inspected or tested as required by 49
CFR 180.407.\4\ Neither National Distribution Services, Inc. nor
TankServices, LLC is currently registered to perform inspections and
tests on DOT specification cargo tanks, and neither has current
registration nor employs a Registered Inspector. Additionally, during
the investigation, DOT specification cargo tanks with evidence of
dents, cuts, gouges, and corroded or abraded areas were observed for
which no inspection and testing have been completed. Moreover, National
Distribution Services, Inc. has been cited during roadside inspections
for violations of the HMRs, including violations for damage to the
cargo tank, the cargo tank not having current inspection markings, and
releases of hazardous materials. For example, on July 14, 2014 National
Distribution Services, Inc.'s vehicle was placed out of service after
the Inspector observed hazardous materials leaking from a control valve
under the middle tank of three tanks.
---------------------------------------------------------------------------
\4\ A DOT specification cargo tank for which a test or
inspection has become due may not be filled and offered for
transportation or transported until the test or inspection has been
successfully completed. 49 CFR 180.407.
---------------------------------------------------------------------------
The condition of the cargo tank operations and cargo tanks of
National Distribution Services, Inc., TankServices, LLC and/or Carl
Johansson, including unauthorized welding repairs on cargo tanks,
including when the tanks have not been cleaned and purged as required,
and daily transportation of hazardous material in cargo tanks that have
not been inspected and tested as required to ensure that they will not
fail, rupture and/or release hazardous materials during transportation,
present a substantial likelihood that death, serious illness, severe
personal injury, or substantial endangerment to health, property, or
the environment may occur before the reasonably foreseeable completion
date of the conclusion of these proceedings.
III. Remedial Action
To eliminate or abate the imminent hazard and/or meet the
conditions of the out-of-service order, you are prohibited from filling
or otherwise loading, offering, or transporting any hazardous material
in any DOT specification cargo tank or cargo tank motor vehicle that
has been repaired or modified unless and until you can demonstrate to
FMCSA that: (1) The repair or modification was performed in conformance
with the requirements of 49 CFR 180.413, and/or (2) any welded repair
of a cargo tank involving welding on the shell or head has been
certified by a Registered Inspector.
Further, to eliminate or abate the imminent hazard and/or meet the
conditions of the out-of-service order, you are prohibited from filling
or otherwise loading, offering, or transporting any hazardous material
in any DOT specification cargo tank or cargo tank motor vehicle,
specifically including, but not limited to, the cargo tanks listed in
Appendix A and/or Appendix B of this Order, unless and until the tank
has been successfully tested and inspected as required 49 CFR
180.407(c) by a Registered Inspector that has current valid
registration in accordance with 49 CFR Part 107, is familiar with DOT-
specification cargo tanks, is trained and experienced in the use of the
inspection and testing equipment needed, and has the training and
experience required to meet the definition of ``registered inspector''
as set forth in 49 CFR 171.8.
IV. Rescission of Order
Before any person identified in this Order may fill or otherwise
load, offer, or transport any hazardous material in any DOT
specification cargo tank or cargo tank motor vehicle, such person must
adequately demonstrate to FMCSA that they have taken the actions listed
above and that the actions taken have, in fact, resulted in abatement
of the imminent hazard.
Any person identified in this Order is subject to this Order unless
and until the Order is rescinded in writing by FMCSA. This Order will
not be rescinded until the Field Administrator for FMCSA's Western
Service Center has determined that the Remedial Action requirements
specified in Paragraph III of this Order have been fully satisfied and
acceptable documentation submitted.
Any request to rescind this Order, and documentation demonstrating
[[Page 55406]]
satisfaction of the Remedial Action requirements, must be directed to
the Field Administrator, Western Service Center with a copy of the
request and documentation submitted to the Division Administrator,
California Division, at the following addresses:
Terry D. Wolf, Field Administrator, Western Service Center, Federal
Motor Carrier Safety Administration, 12600 West Colfax Avenue, Suite B-
300, Lakewood, Colorado 80215.
Steven M. Mattioli, Division Administrator, California Division, 1325 J
Street, Suite 1540, Sacramento, California 85814-2941.
Rescission of this Order does not constitute a grant of required
registration to any person, and does not modify any requirement for
registration(s) as set forth in Title 49, Code of Federal Regulations.
V. Failure To Comply
Any person failing to comply with this Order may be subject to
civil penalties of up to $175,000 for each violation. (49 U.S.C. 5123).
A person violating this Emergency Order may also be subject to criminal
prosecution, which may result in fines, imprisonment of up to ten
years, or both. (49 U.S.C. 5124). Failure to comply with the provisions
of this Order may also result in an action in the United States
District Court for equitable relief and punitive damages.
VI. Penalties for Violations
Any person that violates Federal hazardous materials statutes and/
or regulations is subject to civil and/or criminal penalty provisions.
Penalty provisions for violations of Federal statutes and regulations
are separate and distinct from this Order. Penalties may be assessed
for the violations of Federal requirements, including the Federal
Hazardous Materials Regulations (HMRs) and Orders of the FMCSA,
previously discovered, discovered after the service of this Order, and/
or discovered during subsequent investigations.
VII. Right To Review
Any person to whom the Administrator has issued an Emergency Order
or an Out-of-Service Order is entitled to review of the order pursuant
to 49 U.S.C. 5121(d)(3) and in accordance with section 554 of the
Administrative Procedure Act (APA), 5 U.S.C. 500 et seq. A request for
administrative review must be in writing and may be made within 20 days
of the date this Order is issued.
Any request for review must be addressed and sent by commercial
delivery service or submitted electronically to the Chief Safety
Officer, United States Department of Transportation, Pipeline and
Hazardous Materials Safety Administration, and filed with USDOT Docket
Operations/Docket Services, with a copy concurrently sent to FMCSA's
Office of Chief Counsel at the Western Service Center at the following
addresses:
1. Chief Safety Officer (Attn: Office of Chief Counsel), Pipeline and
Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE.,
Washington, DC 20590,
or by email to: PHMSAChiefCounsel@dot.gov.
2. USDOT Docket Operations/Docket Services, M-30, West Building, Ground
Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
Under Docket Number: PHMSA-2014-0116.
3. Office of Chief Counsel, Western Service Center, Federal Motor
Carrier Safety Administration, 12600 West Colfax Avenue, Suite B-300,
Lakewood, Colorado 80215.
All documents filed with the USDOT Docket Operations/Docket
Services will be published on the Department's docket management Web
site, http://www.regulations.gov.
A petition for review must state each part of the emergency order
and/or out-of-service order for which amendment or rescission of the
order is sought. The petition must also include all information,
evidence and arguments to be considered, and whether a formal hearing
is requested. If the petition requests a formal hearing, the petition
must set forth the material facts in dispute giving rise to the request
for a hearing.
A petition for review must be accompanied by a certificate of
service specifying the manner in which and the date on which service
was made, and must be filed and served in accordance with the
requirements of 49 CFR 109.19(f). If the petition requests a formal
hearing, an additional copy of the petition must also be concurrently
served and addressed to the Chief Administrative Law Judge, U.S.
Department of Transportation, Office of Hearings, M-20, 1200 New Jersey
Avenue SE., (E11-310), Washington, DC 20590 (FAX: (202) 366-7536).
Within 30 days from the date the petition for review is filed, the
Chief Safety Officer will issue an administrative decision on the
petition for review. If the petition for review requests an
administrative hearing and alleges a material fact in dispute, the
Chief Safety Officer will immediately assign the petition to the Office
of Hearings unless the Chief Safety Officer issues an order stating
that the petition fails to set forth material facts in dispute.
Terry D. Wolf,
Field Administrator, United States Department of Transportation,
Federal Motor Carrier Safety Administration.
Issued on September 9, 2014.
T. F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2014-21968 Filed 9-15-14; 8:45 am]
BILLING CODE 4910-EX-P