US gets back into line at COSTHA

THE RULES TO FOLLOW

USA • COSTHA’S 2021 ANNUAL FORUM HEARD FROM LEADERS IN DOMESTIC HAZMAT REGULATION, COMING TO TERMS WITH THE CHANGE IN LEADERSHIP IN THE WHITE HOUSE

PRESIDENT TRUMP’S POLICY of pursuing a light regulatory touch, with the aim of reducing the burden on American business, was undoubtedly good for many corporations and was probably a vote-winner, but for those in the hazardous materials world – and especially those working internationally – it did cause some problems. Not only did the US become significantly out of step with international regulations, but safety-critical rulemakings were also held up.

Nor was it good news for the various agencies of the US Department of Transportation (DOT), which had to cope with a new focus in the oversight of the rulemaking process. As a result, new regulatory activity became sclerotic and failed to address some emerging hazards, especially those relating to new fuels and new energy storage concepts.

With the change in administration in DC in January this year, it was expected that things would change and, as delegates to the Council on Safe Transportation of Hazardous Articles’ (COSTHA) online Annual Forum this past April heard, that has certainly been the case – even if it is not totally clear yet how the new approach will look in detail. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has a lot of catching up to do before it can embark on new rulemakings, and there are other developments in the pipeline.

TO COME FROM PHMSA It was left to Shane Kelley, director of the Standards and Rulemaking Division of PHMSA’s Office of Hazardous Materials Safety (OHMS) to bring COSTHA attendees up to speed with the latest activity. He noted that the politically appointed leadership is still settling in and that there are also some new faces working at PHMSA, so it may take some time to get fully back up to speed.

For this year, PHMSA has three main priorities. The first – and perhaps simplest – is to get the HM-224I rulemaking to a final rule. This is designed to enhance the safe transport of lithium batteries by air and is, in effect, already being observed after an interim final rule was issued in March 2019. PHMSA’s task, Kelley said, is to close out the rulemaking.

The next priority is HM-215P, the biennial update to maintain the US Hazardous Materials Regulations (HMR) in harmonisation with international rules. HM-215P will bring the US into line with the amendments introduced from the start of 2021, certainly as far as the air transport regulations are concerned, though the International Maritime Dangerous Goods (IMDG) Code’s latest amendment, 40-20, will only become mandatory on 1 January 2022. PHMSA is keenly aware that the last biennial update, HM-215O, was more than a year late taking effect and does not want a repeat of that delay; Kelley noted that PHMSA is aiming to bring the process back to a timeline that harmonises more closely with international changes and that the new leadership at the agency is receptive to the idea. He also said that HM-215P “is in good shape” and that industry should see some action “soon”.

There should be few surprises for industry in HM-215P; Kelley pulled out some highlights. There is a new classification for Category A infectious waste; updates to ISO cylinder manufacturing and testing standards (as ever);

new entries in the organic peroxide table (ditto); an expansion of the existing options for the transport of ‘large robust’ articles, such as refrigerating machines; and revised shipping paper requirements for damaged/defective lithium batteries. Aside from that, there is a “lot of upkeep and maintenance”, Kelley said, though these may include some important changes for those affected.

After HM-215P, the next priority is HM-265, which addresses coordination and collaboration with the other modal agencies under DOT and which is also expected to relieve the regulatory burden by avoiding duplicate or conflicting responsibilities; a notice of proposed rulemaking (NPRM) is expected after the NPRM for HM-215P and Kelley said he is “looking forward to feedback” from industry.

There are a number of other rulemakings under development, including an advanced notice of proposed rulemaking (ANPRM) under HM-265A, which will supplement HM-265 with some initiatives for regulatory reform. Other ongoing projects include HM-233G, which will incorporate some outstanding special permits into HMR, and HM-219D, designed to respond to petitions from industry, especially as regards the reduction of the regulatory burden. Separately, HM-250A will update HMR to align with the International Atomic Energy Agency’s (IAEA) transport standards, and HM-257A will look to streamline the approval of energetic substances in transport.

MORE TO SEE Meanwhile, PHMSA has also been asked to take another look at a couple of rulemakings that were completed during 2020, although Kelley said the agency does not see a need for more action on HM-251D, which deals with the vapour pressure of unrefined petroleum (crude oil) and withdraws an ANPRM issued in January 2017 following further research.

HM-264, which is permits the transport of LNG in bulk in rail tank cars, is however under review. This move follows an executive order from President Biden regarding the new administration’s environmental expectations.

PHMSA’s Standards and Rulemaking Division clearly has a lot on its plate right now, and Kelley included in his presentation a reminder – or a plea, even – that petitions for rulemaking and applications for special permits must provide at a minimum the information required by the relevant parts of HMR. Those applications deemed to be substantial may need additional information.

Kelley also addressed how PHMSA has worked during the Covid-19 pandemic and the measures it has put in place to help the country keep moving. The agency is working in a fully virtual environment but has focused on improving customer service and increasing stakeholder communication and outreach. It has also issued a number of enforcement discretions and guidance to help industry keep vital goods moving – including hand sanitisers and disinfectant products – and to provide extensions of deadlines for training, packaging retesting, cylinder requalification and other issues. PHMSA has also reviewed home testing kits for compliance with HMR and worked to facilitate the shipment of vaccines.

The impact of the Covid-19 pandemic has also dominated the agenda of the Federal Motor Carrier Safety Administration (FMCSA) over the past year, reported transportation specialist James Simmons. It has issued a series of waivers and enforcement discretions, all listed on a dedicated page on the FMCSA website. At the time of the COSTHA Annual Forum, FMCSA had also extended the Emergency Declaration relating to the health emergency through to the end of May 2021, adding in a new provision covering vaccines and related material. [This was subsequently extended again to 31 August 2021.]

Simmons also mentioned ongoing work to identify undeclared hazardous materials and the ‘Check the Box’ initiative, which had been referred to earlier in the session on misdeclared and undeclared cargo (HCB June 2021, page 48). FMCSA has put in place an email so that undeclared shipments can be reported at the roadside and there is more information on the website https:// checkthebox.dot.gov/check-the-box.

While undeclared hazmat is a major worry, Simmons reported on other matters of concern to FMCSA. These include compliance investigation and inspections, the accuracy of hazardous materials data and information in the supply chain, and hazmat training. Expect more in these areas at next year’s COSTHA Annual Forum, if not before.

BOX CHECKING EXERCISE Before then, Aaron Mitchell, director of outreach and enforcement at PHMSA, and transportation specialist Joanna Luu came back to the Check the Box initiative, which is a DOT-wide campaign, in the framework of best management practice. During an earlier presentation, Mike Wentz of American Airlines highlighted the risks posed by thermal runaway in lithium batteries but, Mitchell and Luu said, it is not just lithium batteries that

PHMSA IS TO TAKE ANOTHER LOOK AT THE

TRANSPORT OF LNG BY RAIL TO TAKE INTO

are the problem. Despite that, they reported on a container being transported by rail, with no declared hazardous materials, that caught fire in Houston in 2017 when a 55-gallon drums with lithium batteries went into thermal runaway and exploded.

Express carriers seem particularly at risk: the presentation mentioned four UPS employees who were injured in Dallas in 2014 when unmarked boxes containing small inner packages of sulphuric acid leaked, and three FedEx employees were injured in Jackson, Mississippi in 2013 when an unmarked packaging containing oxidising liquids was punctured during handling. In Anderson, California in 2008, a box of undeclared fire extinguishers leaked at a UPS sorting facility, injuring three employees.

Indeed, Mitchell and Luu said, each year there are around 1,500 transport incidents involving undeclared hazardous materials, involving a diverse array of hazardous materials; these can cause serious safety consequences for transport workers, emergency responders and the general public. They urged everyone to ‘Check the Box’ before shipping.

Undeclared hazmat is also a top priority for the US Coast Guard (USCG), as Dr Amy Parker, lead chemical engineer, reported. In this area it is active in the multimodal Undeclared Hazmat Working Group, along with PHMSA and the US Postal Service (USPS), which is looking at inspection trends and incidents, as well as coordinating policy development with the aim of creating a unified outreach and training strategy. Better education of shippers – including informal shippers – is key to achieving compliance, Parker said.

Among other major objectives at USCG, the agency is reviewing compliance with HMR in the ferry sector, looking at policies and regulations for the storage of ammonium nitrate and certain other dangerous goods at designated waterfront facilities, and dedicating more time in the field on outreach and education, both with industry and USCG units.

As with misdeclared cargo, there is a cross-agency Ammonium Nitrate Working Group that is coordinating the government’s approach to the safe transport and storage of ammonium nitrate.

HOME AND AWAY Parker, who was accompanied by her colleague Hillary Sadoff, also mentioned the collaborative work being undertaken with USCG’s Office of Commercial Vessel Compliance (CG-CVC). In particular, that work involves a review and update of the Marine Safety Manual (MSM), Volume II, Section F on the Carriage of Hazardous Materials. It also includes an evaluation of the impact of special permits and approvals on USCG’s inspection programmes, for instance in the use of special permits for specific vessels and dedicated routes. Parker and Sadoff are also providing subject matter expertise on the IMDG and International Maritime Solid Bulk Cargoes (IMSBC) Codes in the update of the Alternative Compliance Program.

It is also USCG’s role to represent US interests at the International Maritime Organisation (IMO). Parker noted that the IMSBC Code’s Editorial & Technical (E&T) Group met virtually in mid-January, and the IMDG Code’s E&T Group did the same in mid-March. The work done at those meetings will feed into the discussions of the Subcommittee on Carriage of Cargoes and Containers (CCC), although its seventh session has now been postponed until 6 to 10

ALL THE FEDERAL AGENCIES ARE FINDING ISSUES WITH

UNDECLARED HAZMAT AND HAVE BEGUN WORKING MORE

CLOSELY TOGETHER TO ADDRESS THE PROBLEM

September. Its agenda has also been reduced, pointing to a reduced number of amendments, and that session will also be held virtually. A joint E&T Group for both Codes will meet virtually immediately after the CCC session.

Returning to domestic matters, hazmat programme specialist Vinny Desiderio explained the role of the US Postal Inspection Services’ (USPIS) hazmat programme, which is “to protect the US Postal Service and its employees, customers, business partners and infrastructure from threats posed by undeclared and improperly prepared dangerous goods in the mail”, of which there is more than there used to be, given the rise in internet shopping.

That increase is reflected in the extent of enforcement activity in recent years. Annual civil penalty requests numbered less than 100 until the 2018 fiscal year, when 318 requests were made, rising to 948 in 2020. That has been matched by increasingly aggressive civil penalties, which totalled some $340,000 in 2018, rising to almost $4m last year.

Penalties represent the stick in enforcement activity but USPS has also been increasing its outreach and education activity, including a tutorial on the packaging and labelling required for hazmat in domestic mail available on the USPS website (www.uspsdelivers.com).

There was also an update to USPS Publication 52, which deals with hazardous, restricted and perishable mail, published in July 2020. This includes changes to the provisions for limited quantities shipped under the ORM-D provisions and to the positioning of labels on adjacent sides of a package. USPS is now looking at the position of electronic nicotine delivery systems (e-cigarettes) in the mail, given the restrictions included in the Preventing Online Sales of E-Cigarettes to Children (PACT) Act. Guidance was published in April 2021, indicating how shippers should address the current requirements.

As might be expected, USPS has also had to look at new supply chains arising from the response to the Covid-19 pandemic, including the shipment of hand sanitisers and Covid test kits. Approvals have been issued to address both products.

It remains to be seen whether the pandemic will persist long enough to prevent the 2022 COSTHA Annual Forum from taking place in person; the Council did well with the organisation of the 2021 event but many regular attendees will be itching to get back to a physical event. Given the presentations given this year, there will certainly be plenty to talk about. www.costha.com