Hazardous Materials: Emergency Restriction/Prohibition Order, 75950-75951 [2011-31054]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Notices]
[Pages 75950-75951]
From the Federal Register Online via the Government Printing 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 PHMSACHIEFCOUNSEL@DOT.GOV) 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 (https://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