U.S. Sen. Frank Lautenberg (D-N.J.) recently introduced Senate Bill 1952, known as the Hazardous Materials Transportation Safety Improvement Act of 2011, which would amend and reauthorize the Hazardous Materials Transportation Act (the “HMTA”) with the intended goal of improving hazardous materials transportation safety in the United States. The Senate legislation proposes changes to the U.S. Department of Transportation’s regulatory authority, appropriations for certain designated projects and a modest increase to the Pipeline and Hazardous Materials Safety Administration’s funding programs. The Hazardous Materials Safety Program would be funded at $42,762,000 for fiscal year (FY) 2013, an increase of less than $500,000 over FY 2012.

• View the complete text of the Hazardous Materials Transportation Safety Improvement Act of 2011

The Senate Commerce, Science and Transportation Committee unanimously reported the legislation on Dec. 14, 2011.   The House Transportation and Infrastructure Committee has postponed introduction and consideration of its counterpart bill until 2012.  The legislation will likely be appended to the highway reauthorization legislation already passed by the Senate Environment and Public Works Committee.

The Interested Parties for Hazardous Materials Transportation (IP), an industry association that represents U.S. industries and public safety agencies that maintain an enviable record of hazardous materials transportation safety and security, has worked vigilantly to ensure that the draft legislation from the House and Senate addresses a number of concerns related to the safe and efficient transportation of hazardous materials.  The Senate legislation does take into account some concerns raised by IP, such as wetlines regulation and clarification of limitations for carrier responsibility in the event of violations.

Cynthia Hilton, Executive Vice President of Govt. Affairs for the International Makers of Explosives and co-facilitator for IP, stated that while the Senate bill does not address every IP concern and some areas will need to be perfected, as a whole, the legislation is fair and balanced.

“[The legislation] contains a number of provisions that improve agency accountability and transparency and that provide opportunities for rulemaking to deal with long-standing issues,” she said.

Hilton said that the regulated community should be especially grateful that the legislation does not contain the administration’s requested “user fee.”

“In addition to the millions of dollars PHMSA already collects to fund emergency preparedness grants, the new user fees were slated to raise nearly $12 million to fund activities related to special permits and approvals,” Hilton said.

Highlights of the Hazardous Materials Transportation Safety Improvement Act of 2011

Civil Penalties

The legislation would increase maximum civil penalties from $50,000 to $75,000. When the violation results in death, serious illness, or severe injury to any person or substantial destruction of property, the maximum civil penalty would increase from $100,000 to $175,000. The legislation also includes a new provision barring any entity that fails to pay a civil penalty for hazardous materials violations from conducting any regulated activity related to the transportation of hazardous materials; the ban would take effect 90 days after the payment due date.

Many in the transport industry have voiced concerns that the penalties issued by PHMSA do not appropriately achieve the desired result and, in many cases, those that pose the greatest risks in transport (e.g. offerors who ship undeclared hazmat) are not held accountable while others that are committed to safety and compliance are fined for minor or frivolous infractions.  Increasing the penalties will only be effective if they are appropriately administered.

Incident Reporting

The legislation would require PHMSA, in consultation with the Department of Homeland Security, to assess methods for collecting, analyzing and reporting data on hazardous materials transportation accidents and incidents. While carriers are currently the only party required to report accidents and incidents, the draft legislation requires an assessment to consider whether to require shippers and consignees to report such information too. Under the legislation, PHMSA must also develop an action plan and timeline for improving its data collection and reporting, and submit a report of its findings to Congress.  PHMSA has been criticized for not effectively using the data they collect.  The agency has been attempting to become more risk-based and data-driven.

In 2009, the Transportation Research Board issued a final report under the Hazardous Materials Cooperative Research Program (HMCRP) entitled “Hazardous Materials Transportation Incident Data for Root Cause Analysis” (see http://www.trb.org/Publications/Blurbs/162769.aspx ). The report, which cost taxpayers $300,000, highlighted a number of recommendations that PHMSA could implement in order to enhance data collection and increase safety through data utilization, including linking databases to take advantage of accident descriptions in more than one database, performing detailed sampling of a specific set of crashes to assemble more detailed information, and adopting techniques to improve data quality and completeness. The report concluded that PHMSA should implement improvements in the ability of interested parties to conduct root cause analysis to enable officials to identify problems for which a solution or mitigation will result in an improvement in hazmat shipment safety.

Based on this, one might ask whether the analysis has already been performed, and PHMSA should simply take steps to implement the recommendations they already have available.  Perhaps the legislation should have considered alternative options, such as:

• Requiring the agency to summarize the data collected each year in a way that is meaningful and useful to those that are focused on enhancing safety
• Indicating what actions the agency plans and how resources will be allocated to continuously reduce risk.

The legislation proposes to amend Section 5125(b) (1) (D) of Title 49 of the United States Code (“49 U.S.C.”), which addresses the agency’s preemption decision-making authority, by inserting the words “…and other hazardous materials transportation incident reporting to the 9-1-1 emergency system or involving state or local emergency responders in the initial response to the incident” before the period at the end. While this may not be apparent to the casual reader, this amendment would broaden the agency’s preemption authority by strengthening the ability to preempt states when actions could result in frustrating commerce.

Electronic Shipping Papers

The legislation would authorize, but not require, PHMSA to conduct one or more pilot projects to examine use of paperless hazard communications systems. Within two years of enactment, the legislation would require PHMSA to report to Congress on the results of the project and to indicate whether the agency recommends incorporating electronic hazard communication systems into the Hazardous Materials Regulations.  Pilot projects were identified in earlier appropriations, but because of the focus on special permits and approvals, very little was done to promote this initiative.  The EU and UN Transport of Dangerous Goods Sub-Committee have discussed this issue, and regulators worldwide are focused on how to communicate more effectively with responders about what is deemed hazmat in a transport vehicle, rail car, ship hold or freight compartment of a cargo plane.  While e-commerce technology enhancements have been realized in almost every other sector, progress relative to hazmat transportation has been at a snail’s crawl.

Loading and Unloading

The legislation would mandate PHMSA to issue regulations establishing uniform procedures among facilities for the safe loading and unloading of hazardous materials on and off tank cars and cargo tank trucks, including procedures for equipment inspection, personnel protection and necessary safeguards.  This is an issue that the agency has struggled with even though they maintain data that clearly indicates enhancements and uniformity in loading and unloading procedures could greatly reduce serious incidents and fatalities.  The IP and the National Transportation Safety Board have been aggressively focused on the publication of a comprehensive loading and unloading regulation.

Enforcement Training

The legislation includes a provision to fund a multimodal training program for hazardous materials inspectors. Currently each modal administration with enforcement authority (PHMSA, FMCSA, FRA and FAA) has its own training program. Significant benefits and consistency could be realized if all of these inspectors received consistent and effective hazardous materials training.  The program would establish uniform standards for inspector training and would instruct inspectors from all modes on:

• how to collect, analyze, and publish findings from inspections and investigations of incidents involving the transportation of hazardous material;
• how to identify noncompliance with the HMRs; and
• how to take appropriate enforcement action.

The best practices and protocols on training developed would be mandatory for DOT inspectors and state personnel conducting federally-funded inspections, and would be made available to all hazardous materials safety enforcement personnel.

Inspections and Opening Packagings

The legislation includes language requested by the IP that amends the statutory authority of DOT to open and inspect hazardous materials packagings en route when the inspector reasonably believes the package presents an imminent hazard. The new language requires notice to the offeror, carrier, or other responsible parties advising them of the decision to stop the shipment and/or open the package, and procedures for safe and expeditious resumption of transportation of perishable hazardous material, including radiopharmaceuticals and other medical products, that may require timely delivery.  In addition, noncompliant packagings that do not present a hazard may be moved to their destination.

Special Permits and Approvals

The legislation would require PHMSA to issue regulations codifying procedures for processing and approving special permits and approvals. The legislation mandates that the agency conduct a fitness determination taking into account the applicant’s safety and regulatory compliance history, accident and incident history, and any other information that the DOT deems relevant.  Of particular note, the legislation would require approval applicants to submit “a certification of safety fitness,” “a safety analysis and supporting documentation,” a “listing of the facilities and addresses where the approval will be used” and “proof of registration.”   The legislation authorizes PHMSA to waive the fitness determination for special permits granted under the emergency processing procedures authorized under Section 5115(e). The section also requires and specifies requirements for consultation with modal administrations depending on the type of transportation involved.  The legislation requires PHMSA to grant or deny a special permit or approval (previously this only applied to special permits) within 180 days beginning on the first day of the month following the date of the filing of the request or publish a notice in the Federal Register as to why the decision had not been made. It also allows for emergency processing of special permits (1) for national security purposes; (2) when processing on a routine basis would result in significant injury to persons or property; or (3) to prevent significant economic loss or damage to the environment.

The legislation would require PHMSA, within two years of enactment, to conduct a rulemaking to establish standard operating procedures to support administration of the special permit and approval programs and objective criteria to support the evaluation of special permit and approval applications. Furthermore, PHMSA would be required to conduct an annual review to incorporate special permits into the Hazardous Materials Regulations where appropriate.

Section 5117(i) addresses the agency’s authority to modify, terminate or suspend an approval or special permit when the terms are violated or if the agency determines a safety deficiency.

Of particular interest is the fact that the Senate did not propose user fees for the processing of applications.  This was proposed by the Obama administration and would have been extremely difficult and impractical to enact.

Training for Emergency Responders

The legislation proposes amendments to Sections 5115 and 5116 of the 49 U.S.C., which relate to the Hazardous Materials Emergency Preparedness (HMEP) Grants Program.  The agency was criticized by the Inspector General for not effectively managing the program and has since implemented a number of changes.  IPHMT has consistently advocated greater transparency and accountability related to the use of the grant funds which are based on user fees.  The legislation states that the agency (Secretary) may not award a grant to an organization unless the organization ensures that emergency responders who receive training under the grant will have the ability to protect nearby persons, property, and the environment from the effects of accidents or incidents involving the transportation of hazardous material in accordance with existing regulations or National Fire Protection Association standards for competence of responders to hazardous materials. More specifically, the legislation requires in 5116 subsection (k) that the annual report submitted in accordance with this subsection shall identify the ultimate recipients of such grants and include:

• a detailed accounting and description of each grant expenditure by each grant recipient, including the amount of, and purpose for, each expenditure;
• the number of persons trained under the grant program, by training level;
• an evaluation of the efficacy of such planning and training programs; and
• any recommendations the Secretary may have for improving such grant programs.

If enacted, this should go a long way towards ensuring that grant funds are used effectively.

Reporting of State Hazmat Fees

The legislation would require states to report to the agency the fees that are imposed on shippers and carriers of hazardous materials. Currently the PHMSA has discretion with respect to requiring reporting of these fees and they have been reluctant to burden states with additional reporting requirements. If enacted, the bill would mandate reporting enhancing transparency for those required to pay the fees.

Highway Routing Disclosures

The legislation would require states to update their designations of routes for transportation of hazardous materials by truck at least every two years and within 60 days of amending them. Each state would have to report:

• the name of the state agency responsible for hazardous material highway route designations; and
• a list of the state’s currently effective hazardous material highway route designations.

The IP was very concerned about enhancing consistency, transparency and accountability with relation to routing. If enacted, this provision would improve the information available to shippers and carriers of hazardous materials regarding routing designations.

Hazardous Material Technical Assessment, Research and Development and Analysis Program

The legislation proposes a new section of the 49 U.S.C (§5118) that authorizes the agency to develop and implement a hazardous material technical assessment, research and development, and analysis program for the purpose of (a) reducing the risks associated with the transportation of hazardous material; and (b) identifying and evaluating new technologies to facilitate the safe, secure, and efficient transportation of hazardous material. While there is no apparent harm in this text, one might ask “doesn’t the agency already do this work?  Do they really need it stated in the HMTA?”

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As mentioned previously, the House Transportation and Infrastructure Committee will not introduce and consider the legislation’s counterpart bill until 2012.  Labelmaster will continue to monitor work on this legislation and provide updates as they become available.