The Pipeline and Hazardous Materials Safety Administration (PHMSA) has increased the potential penalties for failing to comply with the Hazardous Materials Regulations (HMR).
Under Title 49, Code of Federal Regulations (49 CFR), hazardous materials must be transported in accordance the rules set out in Parts 100-185 of the HMR. Failing to follow these minimum standards can result in serious risk to the public, as well as environmental and property damage. Therefore, the potential penalties for lack of compliance must be appropriate. These penalties are set by Congress, but must be reflected in the HMR itself. Civil penalties are fines; there are criminal penalties involving prison sentences for violations that are “willful or reckless”.
Penalties must be kept current, and reflect not only inflationary changes, but also the government’s concern ab that the regulations are taken seriously by stakeholders. Therefore, on July 6, 2012, the U.S. Congress revised the maximum and minimum civil penalties for a “knowing violation” of the Federal hazardous material transportation law, or legal requirements under that law, such as regulations, special permits, inspectors’ orders or special approvals issued under that law. Details on these new penalties may be found in 49 U.S.C. 5123(a). The new penalties take effect on violations that occurred on or after October 1, 2012.
To follow Congress’ lead, PHMSA issued a Final Rule ([Docket No. PHMSA–2012–0257 (HM–258)], RIN 2137–AE96) on April 17, 2013, that incorporated the new civil penalties. These involve:
Increasing the maximum fine possible from $55,000 up to $75,000, for knowingly violating the law;
Revising the maximum penalty from $110,000 to $175,000 , for knowingly violation the law in a way that results in “death, serious illness or severe injury” to a person, or which causes substantial destruction of property; and
Eliminating the minimum civil penalty amount, since most fines are well over the previous set minimum of $250. However, a minimum penalty will be retained for training violations, now to be set at $450.
The updated sections of the HMR include:
§ 107.329, Maximum penalties,
Appendix A to Subpart D of Part 107 – Guidelines for Civil Penalties, and
§ 171.1, Applicability of Hazardous Materials Regulations (HMR) to persons and functions.
Proper training is one essential aid to avoid violations. For training information, or if you have questions about this Final Rule, contact us here at ICC The Compliance Center Inc.
OSHA recently published a brief relating to the new hazardous chemical labeling requirements under the Hazard Communication Standard, 29 CFR 1910.1200 (HCS), which brought the standard into alignment with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS).
The brief outlines the labeling requirements under the new standard. OSHA also discussed an exciting change, that it intends to make to Appendix C, Allocation Of Label Elements, along with a clarification.
Previously, OSHA did not allow a GHS pictogram to be shown on a shipped container label if it conflicted with the DOT hazmat label. Section C.2.3.3 stated:
“Where a pictogram required by the Department of Transportation under Title 49 of the Code of Federal Regulations appears on a shipped container, the pictogram specified in C.4 for the same hazard shall not appear.”
This statement caused a lot concern for those companies shipping 55 gallon drums and/or smaller containers. Those companies would be forced to have various label designs and train workers to recognize the hazards, even without the pictogram showing (on the drum label due to the 4 x 4 hazmat label). OSHA was petitioned to change the requirement almost immediately after the final rule was published in March of 2012.
In the recent brief, OSHA announced its intent to make the change, allowing the use of both the pictogram and the hazmat label.
“However, DOT does not view the HCS pictogram as a conflict and for some international trade both pictograms may need to be present on the label. Therefore, OSHA intends to revise C.2.3.3. In the meantime, the agency will allow both DOT and HCS pictograms for the same hazard on a label.”
I would imagine that many companies will read this and breathe a sigh of relief. This is a welcome change that should make everyone’s job easier.
The Alberta government has issued Industrial Railway Circular No. 1 (Guideline for the Transfer of Dangerous Goods to or from a Railway Vehicle).
Although only a 7 page document, there are 11 sections:
General
Exceptions
Notification/site selection
Primary selection criteria
Additional selection criteria
Approvals
Inspections
Training
Documentation
Notification
Regulatory requirements
The guideline falls under the Railway (Alberta) Act and applies to companies that intend to transfer dangerous goods to or from a railway vehicle. This circular does not apply to Class 1 Explosives. These must be handled under the Federal Handling of Carloads of Explosives on Railway Trackage Regulations.
Railways that intend to construct or connect railway track to a service provider or construct railway works must have approval from the provincial government. Site selection is done in accordance with sections 4 and 5, and if the criteria cannot be met, the application may still be considered if an equivalent level of safety can be demonstrated.
The guideline suggests a dangerous goods transfer track/rack should meet minimum distances from residences, commercial establishments, schools, hospitals, recreation centres, etc..
Dangerous Goods Class
Distance
2.1
100 m
2.2
50 m
2.3
250 m
2.3
450 m
3 excluding inhalation hazard materials
50 m
4.1 molten sulphur
100 m
5.1 excluding inhalation hazard materials
50 m
6.1 excluding inhalation hazard materials
100 m
8
100 m
9
50 m
In addition, the site shall not be located next to busy highways, under a bridge or overpass, next to transformers, power lines, sources of ignition, etc.. The site shall be located so that emergency responders can access it as well as be near an emergency water source.
A company that intends to transfer dangerous goods from or to a railway vehicle must have operating approval from the Alberta Transportation Railway Administrator.
A competent person who is trained in the Transportation of Dangerous Goods Regulations and is familiar with this Circular and the Industrial Railway Regulations must make periodic inspections looking for leaks, and if found, knows who to notify. Written records of all inspections must be kept for two (2) years after the rail cars have been released from holding.
A person who will be loading, unloading or transferring dangerous goods must be trained in the Industrial Railway Employee Qualification Standards. This person must also have a working knowledge of tank cars, fittings, products being transferred, and placarding requirements. This person must ensure that the correct documentation is provided to the carrier. In the event of an emergency involving dangerous goods, the person must provide emergency response information.
In the event of an incident or leakage of dangerous goods, CANUTEC, the local RCMP and the Alberta Transportation Coordination and Information Centre (1.800.272.9600) must be notified.
Regulatory requirements for loading of dangerous goods include:
ensuring all fittings and safeties are in proper condition
bottom discharge outlets must have caps and plugs removed
tank cars with heater coils must have inlet and outlet caps removed
sufficient ullage must be in the tank car
Regulatory requirements for loading or unloading of dangerous goods include:
dangerous goods that have a primary or subsidiary class of 2.1, 3, 4 or 5 must be grounded/bonded to prevent exposure to ignition sources or static electricity
hand brakes applied, 1 set of wheels blocked/chocked in both directions
track protection using locked switches or derails
use of caution signs set at either end of the track
keeping the immediate area free of combustible and other non-compatible materials
In a recent Final Rule, The Federal Railway Administration (FRA) has increased or modified its penalties for hazardous materials violations involving rail shipments.
The Final Rule, RIN 2130–ZA11, reflects Title III of Division C of MAP–21(Pub. L. 112–141), the Hazardous Materials Transportation Safety Improvement Act of 2012. This Act revised the maximum and minimum civil penalties for violations of Federal laws regarding hazardous materials transportation. FRA has therefore updated its references to the maximum and minimum civil penalties for hazardous materials violations in its own guidelines.
In Part 209 of Title 49 of the Code of Federal Regulations (49 CFR), the FRA has made the following changes:
The maximum civil penalty has been increased to $75,000 from $50,000 for “knowing violations” of any requirement of a Federal hazardous materials transportation law. This also applies to violations regarding orders, special permits or approvals issued by the DOT.
The maximum fine has been increased from $100,000 to $175,000 if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property.
The minimum civil penalty of $250 was eliminated. However, a minimum civil penalty of $450 was retained for violations regarding training.
The amendments under the Hazardous Materials Transportation Safety Improvement Act of 2012 became effective on October 1, 2012. FRA will use the new set of fines for violations that have occurred from that date onwards.
ICAO has issued an addendum to the 2013-2014 edition of the Technical Instructions with IATA following suit with their second addendum to the 54th edition of the Dangerous Goods Regulations. These addendums remove the special provision A51 for the carriage of large lithium batteries on aircraft. In light of recent problems with Boeing 787 aircraft, A51 would allow such batteries to be carried as cargo. This special provision applies to UN 2794 Batteries, wet, filled with acid and UN 2795 Batteries, wet, filled with alkali only.
The ICAO addendum is available: here »
The IATA addendum is available: here »
