[Federal Register: March 30, 2007 (Volume 72, Number 61)]
[Notices]
[Page 15184-15187]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr07-134]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2006-26275]
Receipt of Petition for Rulemaking Classification of Polyurethane
Foam and Certain Finished Products Containing Polyurethane Foam as
Hazardous Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This Notice solicits comments on the merits of a petition for
rulemaking filed by the National Association of State Fire Marshals
(NASFM). The NASFM petitioned PHMSA to classify Polyurethane Foam and
certain finished products containing Polyurethane Foam (PU) as
hazardous materials in transportation in commerce, as a matter of
safety for emergency responders and the public.
DATES: Comments must be received by June 28, 2007.
ADDRESSES: Written comments: You may submit comments on this Notice
identified by the docket number (PHMSA-2006-26275) by any of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2251.
Mail: Docket Management System, U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, PL-402,
Washington, DC 20590-0001.
Hand Delivery: PL-402 on the Plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5
p.m. Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this notice. Internet users may access comments
received by DOT at http://dms.dot.gov Note that comments received may be posted without change to http://dms.dot.gov. including any personal
information provided. If you believe your comments contain trade
secrets or confidential commercial information, those comments or
relevant portions of those comments should be appropriately marked.
PHMSA procedures in 49 CFR part 105 establish a mechanism by which
commenters may request confidentiality.
FOR FURTHER INFORMATION CONTACT: Helen Engrum or Susan Gorsky, Office
of Hazardous Materials Standards (202) 366-8553, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
In a letter dated October 31, 2006, the National Association of
State Fire Marshals (NASFM) submitted a petition for rulemaking to the
U.S. Department of Transportation (DOT) through the Pipeline and
Hazardous Materials Safety Administration (PHMSA) under the provisions
of 49 CFR 106.31. The NASFM requested that the Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) be amended to classify
Polyurethane (PU) Foam and certain finished products containing PU as a
hazardous material for purposes of transportation in commerce. The
NASFM is made up of senior-level public safety officials from the 50
States and the District of Columbia. The NASFM petition was received
and acknowledged by PHMSA and assigned petition number P-1491; Docket
No. PHMSA-2006-26275.
Issuance of this Notice does not constitute a decision by PHMSA to
undertake a rulemaking action on the substance of the petition. This
Notice is issued solely to obtain comments on the merits of the
petition to assist PHMSA in making a decision of whether to proceed
with a rulemaking. Of particular interest are substantive comments that
address the following items: (1) Estimated incremental costs or
savings; (2) Anticipated safety benefits; (3) Estimated burden hours
associated with the proposals related to information collection; (4)
Impact on small businesses; and (5) Impact on the national environment.
II. Petition P-1491 Is Quoted as Follows
As a matter of safety for emergency responders and the public,
the National Association of Fire Marshals petitions the U.S.
Department of Transportation (DOT), through the Pipeline & Hazardous
Materials Safety Administration (PHMSA), to classify polyurethane
(PU) foam and certain finished products containing it as a hazardous
material for purposes of transportation. NASFM consists of senior-
level public safety officials from the 50 states and District of
Columbia.
The petitioners regard this proposal as critical to the safety
of emergency responders and the public they are sworn to protect.
The safety of emergency responders begins with information--at
minimum, responders have the absolute right to know when they are
dealing with hazardous materials, so they may take special
precautions at incidents. The petitioners' interest extends to
ensuring that hazardous materials are used, stored and transported
in safe ways. Regulations exist across agencies that regulate the
use and storage of PU foam, but a gap exists in ensuring the safe
transportation of this hazardous material. Because it is not
officially classified as a hazardous material for purposes of
transportation, the safety of emergency responders and the public is
compromised.
The U.S. Department of Transportation's system of hazardous
materials transportation placarding is critical to the safety of
emergency responders and the public. Placards typically are the one
source of information immediately available to responders as they
determine the safest and most efficient means of suppressing fires
and of rescuing persons trapped in vehicles. Placards provide
information essential to knowing how fast a fire might spread, how
difficult it might be to suppress, and how large and dangerous it
may become.
When hazardous materials are not properly placarded, the
consequences to emergency responders could be injury or death.
Obviously some shippers and transporters choose to violate the law
by failing to properly placard when placarding is required. However,
the DOT does not require placarding with some well-recognized
hazardous materials. Such is the case with most grades of rigid and
flexible PU foam and many of the finished products containing this
highly flammable solid.
PU foam, whether in bulk shipments or in finished products, is
explicitly listed and controlled as a hazardous material in all
phases of manufacturing, construction and more recently, consumer
applications. As such, records pertaining to the hazardous nature of
PU foam already are kept and reports are routinely issued by the
producers of these materials. Ironically, when the risks are least
manageable--in transportation--PU foam is not officially considered
hazardous. This petition aims to correct this inadvertent oversight.
Whether experienced in the real world or observed under
scientific conditions, PU foam is a hazardous material. A
significant
[[Page 15185]]
and unambiguous body of scientific literature underscores the poor
fire performance of these materials and products, and a preliminary
review of the fire incident data found numerous transportation
incidents where PU foam and such products as upholstered furniture
and mattresses provided the fuel load for significant fires. These
are not new observations. Smoldering and small open flame ignitions
of finished products containing PU foam have long been the number-
one cause of death by fire in the home.
Proposed Rulemaking Procedure
NASFM proposes the following procedure based on its
understanding of the PHMSA rulemaking process: Issue an Interim
Final Rule designating bulk shipments of Polyurethane (PU) Foam as a
Class 9 hazardous material. As part of this Interim Final Rule
Phase I
Assign a North American Identification number to PU
foam.
Except shippers/carriers from requiring shipping
papers, employee training, specific packaging requirements, and
placarding.
Require carriers to display Orange Panels with the
identification number to identify the presence of PU foam for
initial responders.
Require transportation incidents involving PU foam
fires to be reported to PHMSA.
Publish a Safety Alert identifying measures initial
responders can take to protect themselves and the general public
during this initial response phase of the incident involving PU
foam.
Incorporate the measures published in the Safety Alert
into the 2008 Emergency Response Guidebook (ERG).
Cotton can be used as an example of how PU can be initially
regulated. The following is recommended for inclusion in the
Hazardous Materials Table (49 CFR 172101):
------------------------------------------------------------------------
------------------------------------------------------------------------
Column 1--Symbols...................... D (Domestic).
Column 2--HM description and proper Polyurethane Foam.
shipping name.
Column 3--Hazard Class or Division..... 9.
Column 4--Identification Number........ NA XXXX (to be assigned by
PHMSA).
Column 5--Packing Group................ Leave blank.
Column 6--Label Codes.................. None.
Column 7--Special Provisions........... To be determined by PHMSA.
Column 8--Packaging (8A, 8B, and 8C)... None.
Column 9--Packaging Limitations........ To be determined by PHMSA and
the Federal Aviation
Administration.
Column 10--Vessel Stowage.............. To be determined by PHMSA and
the U.S. Coast Guard.
------------------------------------------------------------------------
This should not be considered a significant rulemaking, because
there are a limited number of carriers transporting bulk PU foam.
Phase IIA
Initiate domestic rulemaking to finalize Interim Final Rule and
explore the need for additional regulatory oversight of products
manufactured using PU foam through the issuance of a Notice of
Proposed Rulemaking.
Phase IIB
Introduce PU foam as a proposed work item at the 30th session of
the Transport of Dangerous Goods Sub-Committee, December 4-12 2006
in Geneva, Switzerland.
Phase IIA and IIB can be conducted simultaneously.
DOT has the authority to classify PU foam as a hazardous
material.
The precise classification of PU foam is a legalistic matter for
consideration by regulators, and may require special treatment given
the unusual properties of these materials. For example, PU foam
becomes highly flammable as it moves rapidly from solid to liquid to
vapor states. In that way, it is similar to gasoline, which becomes
hazardous as it moves from a liquid to a vapor. Gasoline is a
flammable liquid when, in scientific terms, it is a flammable vapor.
Another unique characteristic is that, unlike most hazardous
materials, PU foam becomes dangerous as it becomes lighter in
weight, for a simple reason: low density PU foam contains more air
to feed a fire and more surfaces to ignite.
Manufacturers of PU foam describe these materials as
``combustible solids'' on the material safety data sheets provided
to customers and regulators. However, PU foam does not fit neatly
into the combustible solids category. The prescribed test methods
used with combustible solids are irrelevant to the real-world fire
hazards posed by PU foam, because PU foams possess fire performance
and chemical properties more comparable to well-established
hazardous materials such as gasoline that react in liquid and vapor
phases.\1\ A fire hazard of this significance may not legally be
ignored simply because of the inflexibility of the rating system.
---------------------------------------------------------------------------
\1\ Langevin, Kennedy, and Conyers. United States. Cong. House.
Foam Fire Safety Act. 109th Cong., 1st sess. HR 943. 17 Feb. 2005. 8
Sept. 2006 http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.943.IH:_____________________________________-
Rather than assigning PU foam to Class 4 as a flammable solid,
NASFM recommends that it be placed within Class 9, which exists for
unusual but clearly hazardous materials and products ranging from
molten asphalt to life preservers containing pressurized containers.
The exact classification may not matter as much as the fact that the
classification will subject this material to tighter controls in
transport, thus helping to ensure the safety of emergency responders
and the public.
Classification of PU foam as a hazardous material for
transportation is necessary as a matter of consistency of policies
across various agencies that define the safe use of hazardous
materials.
Those responsible for safety in residential, manufacturing and
storage occupancies already regard PU foam as a hazardous material
because of its poor fire performance.
Manufacturers' Materials Safety Data Sheets and warning
labels on the bulk shipments note the flammability characteristics
of PU foam. Manufacturers recognize that PU foam poses unique fire
and explosion hazards. A typical label on PU foam sold in bulk says:
If ignited, foam can produce rapid flame spread, intense heat,
dense black smoke and toxic gases. Material can melt into a burning
liquid that can drip and flow. Accumulated polyurethane dust can be
readily ignited and presents a fire risk. High concentrations of
dust in the air can explode if exposed to a flame, spark, or other
ignition sources.\2\
\2\ ``Material Safety Data Sheet.'' Foamex. 17 July 2002. Foamex
International, Inc. 8 Sept. 2006. http://www.foamex.com/ftpWs/MSDS%20Flexible%20Polyurethane
%20Foam%20-
%20English.pdfsearch=%22OSHA%20polyurethane%20flexible%20foa
m%20fire%22.
---------------------------------------------------------------------------
The National Fire Protection Association standard NFPA
13's hazard classification system lists PU foam as a Group A
Plastic. This now requires increased use of automatic fire
sprinklers, imposes limits on storage requirements and is strictly
enforced by state and local fire code enforcement officials.
Starting in July 2007, the U.S. Consumer Product Safety
Commission (CPSC) will begin enforcement of mattress fire safety
requirements that effectively isolate PU foam in residential fires.
This action has the benefit of significantly reducing the risk of
fires when mattresses are being transported, in addition to
preventing the approximately 400 mattress fires that occur every
year. \3\ Even if the CPSC proposes fire safety requirements for
upholstered furniture, there is some question whether these
standards will be adequate to address the issues discussed here.
---------------------------------------------------------------------------
\3\ Chowdbury, Risiana, Michael Greene, David Miller, and Linda
Smith. 1999 Revised--2002 Residential Fire Loss Estimates. U.S.
Consumer Product Safety Commission. Washington, DC, 2005.
---------------------------------------------------------------------------
The use of PU foam is regarded as hazardous in some
transportation modes.
The Coast Guard has issued warnings on the fire hazard
of polyurethane insulation and other organic foams on vessels.\4\
---------------------------------------------------------------------------
\4\ Bell, Henry H. Navigation and Vessel Inspection Circular No.
8-80. United States Coast Guard. Washington, DC: U.S. Coast Guard,
1980. 8 Sept 2006. http://www.uscg.mil/hq/gm/nvic/8_80/n8-80.pdf#search=%22Navigation%20and%20Vessel%20Inspection%20
Circular%20No.%208-80%22
---------------------------------------------------------------------------
[[Page 15186]]
The Occupational Safety and Health Administration has
---------------------------------------------------------------------------
issued warnings about PU foam in marine applications saying,
Rigid polyurethane and polyisocyanurate foams will, when
ignited, burn rapidly and produce intense heat, dense smoke and
gases which are irritating, flammable and/or toxic. As with other
organic materials the most significant gas is usually carbon
monoxide. Thermal decomposition products from PU foam consist mainly
of carbon monoxide, benzene, toluene, oxides of nitrogen, hydrogen
cyanide, acetaldehyde, acetone, propene, carbon dioxide, alkenes and
water vapor.\5\
---------------------------------------------------------------------------
\5\ Baier, Edward J. ``The Fire Hazard of Polyurethane and Other
Organic Foam Insulation Aboard Ships and in Construction.'' OSHA
Hazard Information Bulletins. 10 May 1989. U.S. Department of Labor.
8 Sept. 2006. http://www.osha.gov/dts/hib/hibdata/hib19890510.html_____________________________________-
The Federal Aviation Administration requires that all
seat cushions and padding be self-extinguishing.\6\
---------------------------------------------------------------------------
\6\ United States. Federal Aviation Administration. Electronic
Code of Federal Regulations (E-CFR) Title 14: Aeronautics and Space
Part 23. 25 Sept. 2006 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=06a589895da22315eabb8c077bed3ded&rgn=div8&view=text&node=14:1.0.1.3.10.4.86.72&idno=14_____________________________________-
&view=text&node=14:1.0.1.3.10.4.86.72&idno=14_____________________________________-
The National Transportation Safety Board issued a
recommendation on the use of PU foam in maritime applications in
1995 saying,
The Safety Board believes that NFPA [the National Fire
Protection Association] and the Coast Guard should establish, in
cooperation, a national marine fire safety standard on the safe use
of RPU [Rigid Polyurethane] foam and other organic combustible
material insulation on vessels.\7\
---------------------------------------------------------------------------
\7\ Hall, Jim. ``Safety Recommendation in Reply to M-95-24 and -
25.'' 17 July 1995. Washington, DC: National Transportation Safety
Board, 1995. http://www.ntsb.gov/recs/letters/1995/M95_24_25.pdf#search=%22NTSB%20safety%20recommendation%20M-95-24%22
.
---------------------------------------------------------------------------
The current classifications of PU foam as a hazardous material
are supported by a large and unambiguous body of technical and
scientific literature. A bibliography is in the appendix to this
petition.
The petitioners also ask PHMSA to review the results of recent
large-scale fire tests conducted on behalf of the European Union,
which demonstrate clearly the danger that PU foam presents during
transport. The SP Swedish National Testing and Research Institute
conducted four full-scale tests involving truck fires in the
Runehamar tunnel in Norway in September 2003. In one test a truck
was loaded with furniture and in another, a truck was loaded with
mattresses and wooden pallets. In both tests, the heat release rates
(HRR), or measure of the fire's intensity, reached levels that are
normally expected only from hazardous materials.\8\ In fact,
temperatures in the tunnel reached those comparable to tunnel tests
involving petroleum products.\9\
---------------------------------------------------------------------------
\8\ Lonnemark, Anders. On the Characteristics of Fires in
Tunnels. Lund, Sweden: Tryckeriet I E-Huset, Lund University, 2005.
\9\ Ibid., 524.
---------------------------------------------------------------------------
PHMSA is well aware of the difficulties of securing data from
hazardous materials incidents. Because PU foam is not classified as
a hazardous material for transportation, it might follow that
finding examples of incidents would be that much more difficult. But
with little effort, NASFM has found numerous examples. Here are two:
On August 28, 2006, a furniture delivery truck caught
fire on Interstate 5 near San Diego. The semi-truck veered of the
road, hitting a guardrail before the truck burst into thick flames
and smoke. According to the California Highway Patrol, the semi-
truck was transporting furniture and mattresses that quickly went up
in flames. The incident began around 4 pm during the evening rush
hour, and the fire was still burning at 5:30 pm; the incident closed
northbound lanes of I-5 well into the evening and backed up traffic
for miles.
A May 7, 2005, fire in Navarro County, Texas, resulted
in the loss of a reported $10,500 truck where an upholstered sofa
and chair were among the items first ignited.
As part of a rulemaking, NASFM is prepared to work with PHMSA to
undertake a systematic review of incident records where PU foam
contributed to motor carrier fires. These fires may be ignited
accidentally because of collisions or friction during transport,
electrical faults, careless smoking, or they may be ignited
intentionally. Regardless of ignition source, the ensuing fires
present unacceptable risks to emergency responders.
NASFM is especially interested in incidents that may involve the
GMC Savana cargo van that is recommended for furniture deliveries by
the American Home Furnishings Alliance, yet has been the subject of
two DOT supervised recalls because of potential fire hazards related
to defective brakes and electrical components.\10\ This vehicle has
been the subject of at least 10 recalls overall; some of these
defects have the potential to cause the vehicle to crash, further
increasing the risk of vehicle fire.
---------------------------------------------------------------------------
\10\ ``2003 GMC Savana Recalls & Problems.'' Internet Auto
Guide. 25 Sept. 2006. http://www.internetautoguide.com/auto-recalls/67-int/2003/gmc/savana/2500/index.html
.
---------------------------------------------------------------------------
Exemptions are possible for fire-resistant PU foam and finished
products containing PU foam that meet certain flammability
standards.
The petitioners believe it is reasonable to exempt certain
finished products from this rule. For example, mattresses sold after
July 1, 2007, in the United States must comply with CPSC
requirements that effectively shield PU foam from ignition sources.
Much as properly packaged individual containers of fingernail polish
remover are exempt while bulk shipments are not, this new fire
safety standard may exempt compliant mattresses from classification
as a hazardous material. Some upholstered furniture used by
institutions such as health care facilities, prisons and hotels meet
the State of California's most stringent fire safety requirements
for institutional use, and may be eligible for exemption. Certain
grades of high density, fire resistant PU foams as currently
specified by the State of California also may be candidates for
exemption. The full text of these requirements can be found in the
appendices to this document.
But while some exemptions may be justified, the fact remains
that most bulk shipments and many finished products containing PU
foam are formally listed and treated as hazardous materials in
factories, warehouses, retail and residential occupancies by their
manufacturers, users, and regulators. These materials and products
do not suddenly become less hazardous when being transported among
these places. In fact, given the uncertainties of traffic, road
conditions, driver behavior and condition of the vehicle, the risks
are greater during transport, especially to emergency responders who
may need to negotiate treacherous conditions such as a steep, muddy
slope to rescue a driver from a burning truck full of PU foam.
The benefits of changing the classification of PU foam far
outweigh the costs.
Given the similarities of PU foam's fire performance to that of
gasoline and other classified hazardous materials, NASFM believes
that benefits of the hazardous materials classification proposed
here may be comparable to these existing classified materials.
Additionally, because PU foam is already classified as hazardous
across numerous other agencies, there will be no significant
incremental costs associated with the proposed action.
The social and economic costs associated with the loss of a
roadway tunnel are well understood. Serious fires involving PU foam
on roads, on bridges, in garages or in tunnels pose a significant
danger to the health and safety of persons, often result in the
total loss of involved vehicles and can cause significant structural
damage to roads, tunnels or surrounding buildings. The March 1999
fire in the Mont Blanc tunnel between France and Italy tragically
demonstrated the disastrous results of a fire involving materials
classified as non-hazardous: 39 people died during the two-day fire,
and the tunnel was closed for three years following the tragedy. The
cost to the Italian economy alone due to direct damage and lost
revenues associated with the tunnel during the three-year closure is
estimated at $215 billion.\11\ In addition to injuries and
fatalities that result from catastrophic transportation incidents,
the social cost to the surrounding region cannot be ignored. The
furniture truck fire on I-5 backed up traffic for miles and delayed
hundreds of thousands of people in traffic for hours. As
demonstrated by the SP Swedish National Testing and Research
Institute Runehamar tunnel fire tests, a truck containing quantities
of polyurethane--even when in finished products--is capable of
causing this sort of catastrophic fire, which may result in numerous
injuries and fatalities and require years and billions of dollars to
repair.
---------------------------------------------------------------------------
\11\ ``EU Tunnel Fire Safety Action.'' Tunnels & Tunneling
International (2003). 8 Sept. 2006. < http://www.etnfit.net/unprotected_documents/EU%20Action%20-%20Tunnel%20Fire%20Safety%20%-%20TT%20paper.pdf#search=%22Mont%20Blanc%20tunnel%20fire%20cost%22
>.
arch=%22Mont%20Blanc%20tunnel%20fire%20cost%22
>.
The petitioners believe there are no direct effects,
including preemption effects under section 5125 of Federal hazardous
materials transportation law, of our proposed
[[Page 15187]]
action on States, on the relationship between the Federal government
and the States, and on the distribution of power and
responsibilities among the various levels of government.
The petitioners regard the actions proposed here as being fully
supportive of the States' interests in the safety of its citizens
and emergency responders.
The regulatory burden on small businesses, small
organizations, small governmental jurisdictions and Indian tribes
will be minimal.
Small businesses, small organizations, small governmental
jurisdictions, and Indian tribes now comply with safety requirements
for PU foam enforced by state and local officials in manufacturing,
storage, retail and residential occupancies. Classifying PU foam as
a hazardous material for transportation may add some minimal costs
related to placarding, packaging and the selection of routes.
Recordkeeping and reporting costs to manufacturers and
transporters will be minimal.
This action is unlikely to add significantly to existing record
keeping and reporting burdens. The manufacturers and users of PU
foam already regard these materials as ``combustible solids'' and
accordingly maintain and share data with their customers and
regulators.
Classification of PU foam as a hazardous material will
not have any adverse environmental effects but may have significant
positive effects on the natural environment. Additionally, this
action would significantly reduce the costs borne by society for the
unsafe transportation of this hazardous cargo.
Possible environmental effects from the reclassification of PU
foam are:
Increased emissions resulting from longer routes needed
to transport PU foam;
Decreased emissions of the noxious by products of PU
fires like hydrogen cyanide, hydrochloric gas and carbon monoxide
because of increased precautions taken to reduce the number of these
fires.
Societal impacts from the reclassification of PU foam are
readily apparent. Fewer PU foam fires directly benefit society
through decreased injuries, fatalities and property damage.
Therefore, we respectfully ask the DOT to use its clear
authority to protect emergency responders and the public they are
sworn to serve, by accepting this petition and moving forward
expeditiously with enforcement.
III. Purpose of the Notice
The purpose of this Notice is to solicit comments on the merits of
a petition for rulemaking filed by the National Association of State
Fire Marshals requesting classification of Polyurethane Foam (PU) and
certain finished products containing PU as hazardous materials under
the Hazardous Materials Regulations. The safety implications of the
proposals in the petition will be given careful considerations as we go
through the process of determining whether regulatory action is needed.
Because of the many attachments to petition P-1491 (e.g., MSDS,
appendices, bibliography, and other information) submitted with this
petition, we encourage interested parties to access the Web site:
http://dms.dot.govnc%20tunnel%20fire%20cost%22
>.
to review the petition and other documentation
submitted with the petition.
Issued in Washington, DC, on March 27, 2007.
Robert A. Richard,
Deputy Associate Administrator for Hazardous Materials Safety.
[FR Doc. E7-5948 Filed 3-29-07; 8:45 am]
BILLING CODE 4910-60-P