- Industry Links
- HCB Shop
Act on impulse
US Last month’s passing of MAP-21 by Congress came as something of a surprise. Hidden in the near-600 page document is a new Hazmat Act, which will set the regulatory agenda for PHMSA for the next few years
It has become something of a commonplace for major pieces of US legislation to be named as a back-formation of some inspiring acronym. In this case, MAP-21, which gives the impression of providing a roadmap for the 21st century, is more prosaically (and rather vaguely) the Moving Ahead for Progress in the 21st Century Act. Against expectations in this presidential election year, the Act passed Congress last month.
The Act covers a lot of ground, but for Bulletin readers the really important element can be found in Division C, Title III: the Hazardous Materials Transportation Safety Improvement Act of 2012. This Hazmat Act defines the authority of the US Department of Transportation (DOT) and, by extension, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and, in doing so, provides an agenda for the agency’s work over the coming years.
PHMSA will be required within 18 months to establish standards for training inspectors and investigators, which will act as guidelines for the various modal authorities under DOT. This is designed to improve the level of consistency in enforcement activity and interpretation of the Hazardous Materials Regulations (HMR).
The Act also includes provisions to amend the training requirements for hazardous materials emergency responders. Organisations receiving grant funding via the Hazardous Materials Emergency Preparedness (HMEP) programme will have to train their responders to protect people, property and the environment in the event of a hazardous materials incident. This section responds to criticism that the HMEP programme was not being properly managed and not generating the results needed.
Data collection and communication
The Hazmat Act will allow DOT to conduct pilot projects to evaluate the feasibility of paperless hazardous communications systems. The Act indicates that this should involve wireless communication between responders and law enforcement personnel as well as those who offer or transport hazardous materials and their employees. PHMSA has two years to prepare a report on the results of the pilot project, which should include at least one trial in a rural area.
The Hazmat Act also looks at the need to improve PHMSA’s data collection and analysis activities, something that the Administration has already talked about addressing. Under the Act, PHMSA is given a deadline to develop and implement an action plan to improve its system.
PHMSA is further required to develop and implement a technical assessment programme to identify and evaluate new technologies that can assist in reducing the risks associated with the transport of hazardous materials, using data gathered from the other modal administrations under DOT.
The ‘extended authority’ rulemaking, which inter alia provides PHMSA inspectors with the authority to open suspect packagings in the transport chain, caused consternation among shippers and carriers of packaged hazardous materials. Amendments contained in the Hazmat Law are intended to address some of those concerns, by on the one hand requiring appropriate training and equipment for inspectors, and on the other setting requirements for the re-closing of packagings in accordance with HMR and the means by which non-compliant packagings should be removed from the transport chain.
The Act also addresses particular concerns from the healthcare sector relating to the potential for delay in perishable or time-sensitive materials, including radio-pharmaceuticals.
The Act effectively puts on hold any further regulatory action on the controversial wetlines ruling. The National Transportation Safety Board (NTSB) had sought DOT regulation banning the carriage of flammable liquids in external piping on tank trucks, despite the fact that its risk assessment was dubious and such a move might actually increase the overall level of risk.
The Act now requires PHMSA to complete a study within two years, reviewing the safety of the practice of carrying flammable liquids in wetlines, quantifying the number of incidents in which this was a factor, identifying various alternatives, examining the costs and benefits of each alternative and identifying any obstacles to implementation.
PHMSA has twice previously looked in some detail at the issue, with differing results. Perhaps this mandate will result in a final decision one way or the other, but at least not just yet.
The Hazmat Act will require PHMSA to establish standard operating procedures to support the administration of the special permit and approvals process and to establish objective criteria to support the evaluation of applications within two years. This latter element will need to be carried out through a rulemaking that affords industry the opportunity to comment, something that the regulated community had been calling for very vigorously.
PHMSA is already reviewing many of the longstanding special permits and approvals to determine which can safely be rolled into HMR, and has initiated a number of rulemakings to this end. The Act now provides a mandate to review all those special permits that have been in effect for ten years.
The Act also requires PHMSA to review implementation of the motor carrier hazardous material safety permit programme. This may in due course lead to a rulemaking to make improvements to the programme.
The Act includes a requirement that states must submit a list of hazardous material highway route designations, at least once every two years and within 60 days of a route designation being established, amended or discontinued.
Some changes have been made to the text relating to civil penalties for violations of the HMR. The minimum $250 penalty has been removed, although a $450 minimum is introduced for violations related to training. New language is inserted relating to penalties for the obstruction of inspections and investigations and to companies and individuals who fail to pay a civil penalty within 90 days.
One outstanding item that is not addressed by the Hazmat Act is the loading and unloading of hazardous materials. This is currently being handled under an ongoing rulemaking.
The full text of MAP-21, which runs to 599 pages, can be found here: http://www.rules.house.gov/Media/file/PDF_112_2/LegislativeText/CRPT-112hrpt-HR4348.pdf. For reference, the Hazmat Act is on pages 436 to 446.