[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Notices]
[Pages 75950-75951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31054]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2011-0303; Notice No. 11-14]
Hazardous Materials: Emergency Restriction/Prohibition Order
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Emergency Restriction/Prohibition Order.
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SUMMARY: This notice publishes Emergency Restriction/Prohibition Order
2011-001 (DOT Docket Number PHMSA-2011-0303), issued on November 17,
2011 to a number of entities, including Rainbow of Hope. This Emergency
Order was issued by the Office of Hazardous Materials Safety pursuant
to authority granted in 49 U.S.C. 5121(d) and 49 CFR 109.17(a), and is
published in accordance with 49 CFR Sec. 109.19. Emergency Order 2011-
001 prohibits the filling, offering, and transportation of cylinders
containing TyLar gas, and was issued in response to a pattern of
explosions that constitute an imminent hazard under 49 CFR 109.1.
DATES: Effective Date: November 17, 2011.
FOR FURTHER INFORMATION CONTACT: Alice Koethe, Attorney, Office of the
Chief Counsel, PHMSA, (202) 366-4400.
SUPPLEMENTARY INFORMATION: The full text of Emergency Restriction/
Prohibition Order 2011-001 is as follows:
This notice constitutes an Emergency Restriction/Prohibition Order
by the United States Department of Transportation (``DOT'') pursuant to
49 U.S.C. 5121(d) and 49 CFR 109.17(a); and pursuant to delegation of
authority to the Administrator, Pipeline and Hazardous Materials Safety
Administration (``PHMSA''), United States Department of Transportation.
This Order is issued to Rainbow of Hope, Strategic Sciences, Inc.,
Realm Industries AKA Realm Catalyst, Inc. (hereinafter ``Realm
Industries''), Timothy A. Larson, and any other persons or business
entities that manufacture or possess the experimental gas known as
``TyLar'' gas (``TyLar'').
Upon information derived from an investigation, the Administrator
has found that a violation of the Federal Hazardous Materials law (51
U.S.C. 5101, et seq.) or the Hazardous Materials Regulations (49 CFR
parts 171 to 180), an unsafe condition, or an unsafe practice is
causing or otherwise constitutes an imminent hazard to the safe
transportation of hazardous materials. For more detailed information
see ``Background/Basis for Order'' below.
Specifically, on August 9, 2011 a large explosion occurred at a
Rainbow of Hope facility at 12349 Gladstone Avenue, Sylmar, CA. Two
people were seriously injured in the explosion, and a third suffered
minor injuries. Subsequent investigation by law enforcement revealed
that the company manufactured and offered TyLar for transportation.
There is a history of explosions associated with TyLar. Specifically,
on June 17, 2010, there was a fatal explosion at Realm Industries, an
apparent predecessor company of Rainbow of Hope. This explosion was
also linked to TyLar. In light of these facts, PHMSA believes that both
the filing and offering of TyLar in cylinders in preparation of
transportation and the transportation of TyLar in commerce constitute
an unsafe condition that is of sufficient severity to constitute an
imminent hazard.
Effective Immediately Any Person Identified by This Order
(1) Is prohibited from filling and offering cylinders with TyLar
for transportation; and
(2) Is prohibited from transporting TyLar in commerce by any mode
or causing it to be transported in commerce.
This Order applies to Rainbow of Hope, Strategic Sciences, Inc.,
Realm Industries (Realm Catalyst, Inc.), any other alias or successor
companies, and their officers, directors, employees, subcontractors,
and agents.
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.
Jurisdiction
Rainbow of Hope and/or Strategic Sciences, Inc. and/or Realm
Industries (Realm Catalyst, Inc.) offer for transportation or transport
hazardous materials in commerce within the United States and are
therefore ``persons,'' as defined by 49 U.S.C. 5102(9), in addition to
being ``persons'' under 1 U.S.C. 1. Accordingly, Rainbow of Hope,
Strategic Sciences, Inc., and Realm Industries (Realm Catalyst, Inc.)
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)).
Basis for Order
On August 9, 2011, a large explosion occurred at 12349 Gladstone
Avenue, Sylmar, CA, at a facility occupied by Rainbow of Hope. Two
people were seriously injured in the explosion, and a third person
suffered minor injuries. The explosion also decimated a section of the
roof of a 7,400 square foot industrial building. Subsequent
investigation by law enforcement revealed that the company manufactured
and offered TyLar for transportation. There is a history of explosions,
and serious injuries, associated with TyLar. Specifically, on June 17,
2010, there was a fatal
[[Page 75951]]
explosion at Realm Industries, Inc., an apparent predecessor company of
Rainbow of Hope. The June 2010 explosion, which took place at an
industrial facility at 480 East Easy Street, Simi Valley, California,
was also linked to TyLar. In addition, a third explosion occurred at a
Realm Industries facility on December 15, 2008. A Material Safety Data
Sheet (MSDS) for TyLar describes it as a flammable, colorless, odorless
compressed gas that poses an immediate fire and explosive hazard when
concentration exceeds 5.2% in the atmosphere. The MSDS states that
TyLar is capable of self-sustained combustion and detonation creating
an implosion when unadulterated by other gases, will create an
explosive mixture when combined with other gases, and creates a strong
sonic shock upon ignition. The MSDS does not include composition
information, merely stating that the product is a ``Trade Secret'' and
a ``Proprietary Mixture.''
In the hazardous materials context, an unsafe condition rises to
the level of an imminent hazard when a ``substantial likelihood that
death, serious illness, severe personal injury, or a substantial
endangerment to health, property, or the environment may occur before
the reasonably foreseeable completion date of a formal proceeding begun
to lessen the risk of that death, illness, injury, or endangerment.''
49 CFR 109.1.
TyLar-related incidents have caused two major explosions within a
14-month period. The August 9, 2011, explosion in Sylmar caused two
people to suffer severe injuries and caused substantial destruction of
property. The June 17, 2010, explosion in Simi Valley caused a death.
Because the companies did not cease TyLar-related activities following
the 2010 death, but instead changed locations and resumed work related
to the TyLar gas, PHMSA believes that the companies may resume
production and transportation activities. Due to the history of
property damage, death, and severe personal injury related to the use
and transportation of TyLar, PHMSA believes that its continued use and
transportation in commerce constitutes an imminent hazard. Given these
facts, PHMSA concludes that there is a substantial likelihood that
TyLar-related operations may cause death, serious illness, severe
personal injury, or a substantial endangerment to health, property, or
the environment before the reasonably foreseeable conclusion of these
proceedings.
Remedial Action
To eliminate or abate the imminent hazard, you must refrain from
filling cylinders with TyLar and refrain from offering TyLar for
transportation in commerce or transporting it in commerce. In the
alternative, you may present evidence showing that you have developed
adequate safety measures to mitigate the risks of explosion presented
by TyLar.
Rescission of This Order
Before you may fill cylinders, offer and/or transport any hazardous
material subject to this Order you must be able to adequately
demonstrate to the Administrator that you have taken the actions listed
above, or that you have taken other actions, and that the actions taken
have, in fact, resulted in an imminent hazard no longer existing. After
you have presented evidence showing that the imminent hazard no longer
exists, the Administer will issue a Rescission Order. Until a
Rescission Order is issued, you musnot offer or transport any package
covered by this Order.
Failure To Comply
Any person failing to comply with this Emergency Order is subject
to civil penalties of up to $110,000 for each violation or for each day
they are found to be in violation (49 U.S.C. 5123). A person violating
this Emergency Order is also subject to criminal prosecution, which may
result in fines under title 18, imprisonment of up to ten years, or
both (49 U.S.C. 5124).
Right to Review
Any person to whom the Administrator has issued an Emergency 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. Any petition seeking relief must be filed
within 20 calendar days of the date of this order (49 U.S.C. 5121
(d)(3)), and include one copy addressed to the Chief Safety Officer
(CSO) for the Pipeline and Hazardous Materials Safety Administration,
United States Department of Transportation, 1200 New Jersey Avenue SE.,
Washington DC 20590-0001 (Attention: Office of Chief Counsel)
(electronically to [email protected]) and one copy addressed to
U.S. DOT Dockets, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Room W12-140, Washington, DC 20590 (http://Regulations.gov
under Docket PHMSA-2011-0303). Furthermore, a petition for
review must state the material facts at issue which the petitioner
believes dispute the existence of an imminent hazard and must include
all evidence and exhibits to be considered. The petition must also
state the relief sought. Within 30 days from the date the petition for
review is filed, the CSO must approve or deny the relief in writing; or
find that the imminent hazard continues to exist, and extend the
original Emergency Order. In response to a petition for review, the CSO
may grant the requested relief in whole or in part; or may order other
relief as justice may require (including the immediate assignment of
the case to the Office of Hearings for a formal hearing on the record).
In order to request a formal hearing in accordance with 5 U.S.C.
554, the petition must state that a formal hearing is requested, and
must identify the material facts in dispute giving rise to the request
for a hearing. A petition which requests a formal hearing must include
an additional copy addressed to the Chief Administrative Law Judge,
U.S. Department of Transportation, Office of Hearings, M-20, Room E12-
320, 1200 New Jersey Avenue SE., Washington, DC 20590 (Fax: (202) 366-
7536).
Issued in Washington, DC, on November 17, 2011.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2011-31054 Filed 12-2-11; 8:45 am]
BILLING CODE 4910-60-P