More about enforcement at COSTHA

TRUST AND VERIFY

CONFERENCE REPORT • WHILE THE REGULATED COMMUNITY IS EXPECTED TO COMPLY WITH THE RULES, THERE ARE PLENTY OF WAYS IN WHICH REGULATORS CAN ENFORCE THEM

THE COUNCIL ON Safe Transportation of Hazardous Articles (COSTHA) held its 2019 Annual Forum this past 7 to 11 April at the Hyatt Regency in Long Beach, California. As ever, the event provided a handy way for hazmat professionals from around the world to come up to date with the latest regulatory amendments, while spending time with the regulators themselves and a host of equipment and service providers offering tools to help them do their jobs more effectively.

And, as the first part of this report on the event (HCB August 2019, page 58) revealed, there was plenty to catch up on, not least in Canada. Delegates also heard from representatives from the US, Mexico, China and Europe.

But the regulations governing the transport (or transportation) of dangerous goods (or hazardous materials) aim for global harmonisation, so Shane Kelley and Lindsey Constantino from the Pipeline and Hazardous Materials Safety Administration (PHMSA) brought delegates quickly up to speed with recent developments at the international regulatory fora.

BACK FROM GENEVA They began with the recent and upcoming work of the UN Sub-committee of Experts on the Transport of Dangerous Goods (TDG), which had discussed two papers from the US, one on the default fireworks classification table and one on removing the Packing Group I assignment for alkali metal amides. They also reminded the audience of decisions made relating to the dimensions of the lithium battery mark, the minimum wall thickness for metal intermediate bulk containers (IBCs) and the classification of self-inflating recovery devices.

With the new biennium’s work due to begin shortly after the COSTHA meeting, in July 2019, to work on the 22nd revised edition of the UN Model Regulations, Kelley said that the work plan is aiming to look at performance-based and risk-based hazards and mitigation. Two major pieces of work will be the continuation of the work towards a hazard-based classification system for lithium batteries – yes, more changes are in the offing, but it is hoped that this will provide a consistent system that will not require changes in the future – and provisions for fibre-reinforced plastics (FRP) portable tanks.

Kelley and Constantino also reported on the meeting of the International Civil Aviation Organisation’s (ICAO) Dangerous Goods Panel (DGP), which had taken place the week prior to the COSTHA forum; this was the second of three planned meetings for the 2018-2019 biennium.

ICAO’S DANGEROUS GOODS PANEL HAD MET JUST BEFORE

DGP is progressing with the move towards competency-based training, a move that had been interrupted after technical difficulties in arranging the necessary changes under the Chicago Convention.

GONE TO SEA Hillary Sadoff of the US Coast Guard (USCG) brought attendees an update on the work of the International Maritime Organisation’s (IMO) Sub-committee on Carriage of Cargoes and Containers (CCC) and the Editorial & Technical (E&T) Group for the International Maritime Dangerous Goods (IMDG) Code, which had been drafting the changes that will appear in Amendment 39-18 of the Code.

Apart from those changes to maintain harmonisation with the UN Model Regulations, a significant number of proposals had been put forward with specific applicability to maritime transport. Many of these came from Germany, which holds the chair of CCC, and included a proposal to delete the word ‘flammable’ from the proper shipping name of UN 2754 toluidine, and to apply ‘separated from’ in the segregation of ammonium nitrate and ammonium chlorates and perchlorates.

France had also been busy, proposing to amend 5.4.3.1 of the IMDG Code to require the addition of all special provisions, stowage and handling codes and segregation codes to the dangerous goods manifest. It also proposed changes in 4.1.1, 4.1.2 and 4.2.4 to prohibit the filling or discharging of packagings, large packagings, intermediate bulk containers (IBCs) and multipleelement gas containers (MEGCs) while they are onboard a vessel. A third proposal from France suggested replacing the term ‘dangerous goods declaration’ with ‘dangerous goods transport document’.

Two interesting proposals were forthcoming from industry. The International Paint and Printing Ink Council (IPPIC) proposed an amendment to 5.4.1.4.3.6:

Flashpoint: If the dangerous goods to be transported have a flashpoint of 60°C or below (in °C closed-cup (c.c.)), the minimum flashpoint shall be indicated. Because of the presence of impurities, the flashpoint may be lower or higher than the reference temperature indicated in the Dangerous Goods List for the substance. For class 5.2 organic peroxides which are also flammable, class 2 aerosols and class 4.1 flammable solids, the flashpoint need not be declared.

The International Chamber of Shipping (ICS), referencing the new provisions for the transport of polymerising substances, proposed that such shipments should show the self-accelerating polymerising temperature (SAPT) on the dangerous goods declaration; carry an indication that any chemical inhibitors employed are sufficient to prevent polymerisation for the duration of the transport and any transhipment; and carry an indication that no temperature control is necessary or, if it is, that the kind of cooling requirements/container type used is in accordance with 7.3.7.3.2.

WHAT’S IN THE BOX? There were some interesting discussions on incidents and container inspections. The IMO secretariat noted that a new online page to allow states to submit container inspection reports is now available. Sadly, though, despite a regulatory requirement to do so, only a few states are submitting such reports and, of the seven that do so, only the US has a significant container inspection programme in place. In the most recent set of results, of the 79,780 cargo transport units (CTUs) inspected, 6,684 were found to have deficiencies.

ICHCA International noted that, despite efforts, the proportion of CTUs with deficiencies remains stubbornly high, and offered a list of the cargoes most likely to leak to incidents. It also felt that there is both ignorance of and intent to avoid compliance with the regulatory provisions. It proposed setting up an intersessional correspondence group to review the topic in more detail.

Germany provided information on two recent containership fires, involving MSC Katrina (in November 2015) and Ludwigshafen Express (in February 2016), both of which started in containers carrying charcoal. In both cases, the charcoal involved had successfully passed the N.4 test. ICHCA International said there has been an increase in the number of incidents involving charcoal, which is a ‘natural’ product and can therefore be expected to vary in its properties between batches. It proposed that the E&T Group should consider the technical aspects of this cargo and perhaps the deletion of special provisions 223 and 925.

On the final day of the forum there was a workshop on preparing for regulatory inspections. During that session, USCG provided more detail on its container inspection programme, which aims to look »

into around 6,150 containers each year, of which some 75 per cent are hazmat boxes. In those cases, inspectors are checking that the goods are in compliance with the relevant provisions of the Hazardous Materials Regulations (HMR) as well as the IMDG Code.

After selecting a container, inspectors look at the external structure, open and ventilate the container and inspect the stowage, before it is closed and re-sealed. Leaving aside noncompliance with the dangerous goods rules, the list of common discrepancies discovered by USCG inspectors is unfortunately familiar and consistent: weaknesses in blocking and bracing and structural deficiencies are all too common. Containers with hazardous materials are too often bearing improper markings and placards; the subsidiary hazard is often not shown; and boxes frequently lack a marine pollutant mark.

THE INSPECTOR CALLS A somewhat different slant on the subject was provided by James Simmons, hazmat program manager, western region for the Federal Motor Carrier Safety Administration (FMCSA). He reminded the audience what it is they are doing when they sign the dangerous goods consignment note: that they confirm that the contents of the consignment are “fully and accurately described … by the proper shipping name, and are classified, packaged, marked and labelled/placarded, and are in all respects in proper condition for transport according to applicable international and national government regulations”.

Simmons explained what carriers can expect when they get a visit from an FMCSA inspector – a visit that may well come as a result of an incident or complaint – and offered some advice on what carriers should do to avoid the worry in the future: • Perform internal reviews of all records: are they complete and up to date? • Periodically review the status and performance of hazmat drivers, and • Ensure that all hazmat employees are fully trained.

Simmons also advised shippers to perform due diligence on the carriers they select to minimise the risk of hazmat incidents and mis-communication. Most importantly, all those involved in the supply chain should feel free to ask questions of those who regulate hazmat transport – an opportunity that the COSTHA Annual Forum provides.

In a similar vein, Robert Burns, an investigator with the southern region of PHMSA, offered some thoughts on why regulated entities are subject to inspections. There may have been complaints against the organisation, or there may be an incident history that prompts further investigation. Often, though, inspectors choose to visit locations that handle high-risk substances, particularly those that are toxic by inhalation.

Burns explained to the audience what they should expect to happen when a PHMSA inspector turns up at their door. The inspector will gather evidence through interviews and a review of documentation, and may take photographs. The types of items to be inspected will vary according to the facility’s operations, but may involve testing equipment, manufacturing equipment, the packaging and marking/labelling of hazmat, training records and the site’s security plan.

Companies can help by ensuring that they have all documentation easily available and in good order; at least two years’ worth of documents will be needed.

On leaving, the inspector will provide a ‘field report’ – this should not be confused with a ‘final report’. It will summarise the inspection and note any probably violations. It will be reviewed by the inspector and a company official, and informal guidance may well be offered. The inspector may request corrective action and refer the company to the penalty guidelines. Burns also gave an outline of the various enforcement actions available.

Entities that consider themselves quality operators should also be aware of the opportunity to file complaints about other operators. This is an anonymous, online process that receives high priority at PHMSA, as it is seen as a way of identifying the ‘bad guys’ who are avoiding compliance with the HMR.

PLEASE MR POSTMAN The increase in the e-commerce sector has prompted more interest in hazardous materials in the post and this was reflected in the appearance at the COSTHA forum of Mary Collins from the US Postal Service (USPS) and Kevin Gunther and Vincent Desiderio of the US Postal Inspection Service (USPIS). USPS has its own version of HMR, known as ‘Publication 52’: the Hazardous, Restricted and Perishable Mail Manual.

There have been recent changes to the Manual for mailpieces containing liquids.

THE US LEADS THE WORLD IN APPLYING THE IMO

A final rule was issued on 18 March 2019 and took effect on 28 March. This specifies, inter alia, that all non-metal containers, metal containers with friction tops (i.e paint cans) and metal cans using pull-tabs, with a capacity of more than 4 ounces, must be triple-packaged. A proposal to extend this to smaller packagings was not adopted. There is also a requirement for the use of orientation arrows, recommendations on the use of locking rings, and language to specify the use of “strong and securely sealed” outer packaging. There was, though, some relaxation from the need to provide test results with each mailing for those shippers using the ISTA test procedure 3A.

Other recent revisions to Publication 52 cover cigarette lighters, UN 3506 mercury contained in manufactured devices, a new definition of ‘rigid’, and new examples of non-mailable Class 3 liquids. USPS has also aligned with US DOT definitions of toxicity and with the Universal Postal Union (UPU) references to radioactivity levels. ORM-D packages are now no longer permitted in priority mail.

USPIS presented a catalogue of pictures showing what can happen when the wrong things are mailed in the wrong way, not least lithium batteries catching fire in the post. However, the practice of smuggling cobras in potato ship cans, which led to one man’s arrest, probably does not fall under the hazardous materials regulations.

The 2020 COSTHA Annual Forum will take place in Greenville, South Carolina from 26 to 29 April. Full information can be found at www.costha.com.