Hazmat 101 News - August 2001

Applicability of the Hazardous Materials Regulations to Loading, Unloading and Storage

By Prokopis A. Christou, PE

The Research and Special Programs Administration (RSPA), an agency of the U.S. Department of Transportation (DOT), is proposing to revise the Hazardous Material Regulations (HMR) to clarify the applicability of the HMR. What in the U.S. we refer to as hazardous materials, the rest of the world calls dangerous goods.

Over the years, there has been confusion about whether loading, unloading, and storage preceding or following the movement of hazardous materials in transportation are part of transportation in commerce, and thus covered by the HMR. In addition, there has been uncertainty concerning the extent to which state and local agencies can regulate hazardous material safety, particularly at fixed facilities, where the lines of pre-transportation, transportation, and non-transportation activities are not clearly articulated (Federal law preempts state and local requirements that conflict with Federal hazardous material regulations). Also, the industry sought clarification of jurisdiction of standards and programs administered by the Occupational Safety and Health Administration and the U.S. Environmental Protection Agency (in general, DOT has exclusive jurisdiction to regulate transportation safety in order to ensure nationwide uniformity).

In this action, RSPA:

• Proposes to list in the HMR specific functions to which the HMR apply and identify the types of persons or entities responsible for compliance.
• Proposes to include in the HMR an indication that facilities may also be subject to applicable standards and regulations of other Federal agencies.
• Proposes to list in the HMR statutory language under which non-federal governments may be precluded from regulating certain areas under the preemptive provisions of the federal hazmat law.

The proposed changes restate the status quo as reflected in regulatory interpretations, except for the loading and unloading requirements.  Below is the proposed definition of pre-transportation functions.

Pre-transportation function means tendering a hazardous material to a carrier for transportation in commerce; causing a hazardous material to be transported in commerce; or performing a function specified in the HMR that is required to assure the safe transportation of a hazardous material in commerce, including--

• Determining the hazard class of a hazardous material.
• Selecting a hazardous materials packaging. Filling a hazardous materials packaging.
• Securing a closure on a filled hazardous materials package or container or on a package or container containing a residue of a hazardous material.
• Marking a package to indicate that it contains a hazardous material.
• Labeling a package to indicate that it contains a hazardous material.
• Preparing a shipping paper. Providing and maintaining emergency response information.
• Reviewing a shipping paper to verify compliance with the HMR or international equivalents.
• Certifying that a hazardous material is in proper condition for transportation in conformance with the requirements of the HMR.
• Blocking and bracing a hazardous materials package in a freight container or transport vehicle. 
• Segregating a hazardous materials package in a freight container or transport vehicle from incompatible cargo. Selecting, providing, or affixing placards for a transport vehicle to indicate that it contains a hazardous material.

This proposed action directly affects shippers and carriers of  hazardous materials.  If finalized as proposed:

• The regulatory action will enhance understanding of the applicability of the HMR by listing in the HMR regulated pre-transportation functions, transportation functions, and person responsible to comply. 
• The unloading and unloading of hazardous materials performed by shippers' personnel will no longer be considered an HMR covered function as "transportation commerce". As a result, attendance and operational requirements would not apply to them. In addition, mandatory DOT training would not be required for unloaders who do not perform other regulated functions. Loading and unloading functions performed by carrier employees (e.g. motor vehicle drivers, railroad crew) would continue to be regulated as an incidental carrier function (part of transportation in commerce). Many of the functions performed by loaders will continue to be regulated as "pre-transportation functions".
• The unloading of tank cars performed by consignee employees will no longer be regulated. Section 174. 67 (Unloading of Tank Cars) would be deleted. The requirements to use caution signs (blue flags) and block wheels during loading and unloading will continue. They would be added to Section 173.31.

RSPA accepts comments on the proposal until October 12, 2001

More information
Federal Register: 6/14/01, p. 32420
U.S. DOT Regulation: 49 CFR 171, 173, 174, 175, 176, 178
Hazmat 101 News archives: http://www.hazmat101.com

About the Author
Prokopis Christou, P.E.  has 14 years of diverse experience in managerial, technical, and teaching responsibilities in environmental, safety, transportation, regulatory, and engineering matters. Email: prokopis@hotmail.com