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Fall 2011 Regulatory Agendas: Hazardous Materials Safety

Posted on 1/31/2012 by James Griffin

Twice each year, the departments and independent agencies of the Federal government publish public agendas of their rulemaking activities. These semiannual agendas both review recent new rules and announce upcoming rule activities. While each agency and department creates its own agenda, the agenda system as a whole is organized by the Office of Management and Budget under the Regulatory Flexibility Act, Administrative Procedure Act, and in conformance with several executive orders. 
 
Traditionally, the agendas are published in the Federal Register, but since 2007, the Internet has been the primary medium of distribution. On Friday, January 20, 2012, the Regulatory Information Service (a sub-unit of the OMB) softly published the “Fall 2011″ regulatory agenda on its Web site. As the Federal Register has yet to publish any notice of its own on these agendas, let’s get right to Lion’s semiannual review of the EHS agencies agendas. 
 
The Pipeline and Hazardous Materials Safety Administration (PHMSA), under the Department of Transportation (DOT), is responsible for regulating the nation’s hazardous material and pipeline safety laws. While the hazardous material program was not specifically called out in the DOT’s “Overview and Summary of Regulatory Priorities,” the Associate Administrator for Hazardous Materials Safety expects to work on several rulemaking dockets in 2012, including: 
On August 12, 2011 (76 FR 50332), PHMSA proposed amendments to the Hazardous Materials Regulations (HMR) requirements for the transportation of Class 7 (radioactive materials) based on recent changes contained in the International Atomic Energy Agency (IAEA) regulations. This rulemaking would more fully align the HMR with the international standards and would update, clarify, correct, and provide relief of certain regulatory requirements applicable to the transportation of radioactive materials. The comment period ended on November 10, 2011, and PHMSA expects to complete analyzing the comments by June 2012.
 
Way back in January 2010 (75 FR 1302), PHMSA proposed amendments to the HMR to comprehensively address the safe transportation of lithium cells and batteries. After more than two years of delay, the Agency may publish a new proposal in May of this year. 
 
This rulemaking would update and clarify existing requirements by incorporating changes into the Hazardous Materials Regulations (HMR) based on PHMSA’s own initiatives through an extensive review of the HMR and previously issued letters of interpretation.
Specifically, among other provisions, PHMSA would:
 
  • Provide for the continued use of approvals until final administrative action is taken, when a correct and completed application for approval renewal was received 60 days prior to expiration date; 
  • Update various entries in the hazardous materials table and the corresponding special provisions; 
  • Clarify the lab pack requirements for temperature-controlled materials; . 
  • Correct an error in the HMR with regard to the inspection of cargo tank motor vehicles containing corrosive materials; and 
  • Revise the training requirements to require that hazardous materials employers ensure their hazardous materials employee training records are available upon request to an authorized official of the Department of Transportation or the Department of Homeland Security. 
PHMSA may publish a Notice of Proposed Rulemaking on this action in July 2012.
 
This rulemaking would address petitions that request minor changes to the Hazardous Materials Regulations (HMR) for purposes of clarifying the HMR or enhancing safety, while offering some net economic benefits. Among the petitions included in this rulemaking are:
 
  • P-1479–pertaining to manufacturer and third-party laboratory package markings; 
  • P-1554–IBC material thickness standards; 
  • P-1555–drop test requirements for small quantities of certain hazardous materials transported by air and vessel; and 
  • P-1556–incorporating a special permit that allows the dangerous cargo manifest to be in locations designated by the master of the vessel besides “on or near the bridge” while the vessel is in port. 
According to the Agenda, PHMSA intended to publish a proposed rule in January 2012.
 
This rulemaking would amend the Hazardous Materials Regulations (HMR) to incorporate provisions contained in certain widely used or longstanding special permits and competent authorities that have established safety records. Incorporating such provisions into the HMR is intended to provide wider access to the regulatory flexibility offered in the special permits and competent authorities. The adoption of the provisions would eliminate the need for numerous application and renewal requests. The special permits proposed to be added to the regulations here would allow:
 
  • The transportation of “Self-heating solid, organic n.o.s. (spent bleaching earth)” in sift-proof bulk packaging; 
  • The use of regulated medical waste shipping names and markings that differ from those prescribed in the HMR; 
  • For the transportation of Class 9 solid coal pitch compounds in non-specification open top or closed-top sift proof metal cans or fiber drums; and 
  • For the transportation of self-inflating life-saving appliances that contain non-specification steel cylinders when being transported between a vessel and an authorized facility for servicing. 
This rulemaking action would facilitate commerce activity and reduce paperwork burdens while maintaining an appropriate level of safety. Incorporation of these provisions would reduce the compliance burden and cost on both industry and government. According to the Agenda, PHMSA intended to publish a proposal by the end of January 2012.
 
Incident data and testing conducted on behalf of DOT indicate many combination packagings authorized for the transportation of hazardous materials may not withstand conditions normally incident to air transportation. PHMSA is considering measures to reduce the incidence of package failures and to minimize the consequences of failures should they occur. This rulemaking would require additional measures to verify packaging integrity, such as performance testing, and revisions to packaging requirements, such as the addition of liners or absorbent material.
PHMSA has been developing this rule for several years, publishing a notice of proposed rulemaking May 14, 2010 (75 FR 27273) and intends to publish a final rule in May 2012. 
 
This rulemaking would amend the Hazardous Materials Regulations to require each person (i.e., carrier or facility) who engages in cargo tank loading or unloading operations to perform a risk assessment of the loading and unloading operation and develop and implement safe operating procedures based upon the results of the risk assessment. This rulemaking was first proposed on March 11, 2011 (76 FR 13313), and PHMSA predicts a final rule by August 2012.
 
The rulemaking would amend the Hazardous Materials Regulations to prohibit flammable liquids from being transported in unprotected product piping on existing and newly manufactured DOT specification cargo tank motor vehicles. PHMSA first proposed this rule on January 27, 2011 (76 FR 4847) and expects to publish a final rule in August 2012.
 

Tags: DOT, hazmat shipping, lithium batteries, new rules

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