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A nettle grasped
Representatives of various administrations within the US Department of Transportation (DOT) turned up to this year’s annual forum of the Council on Safe Transportation of Hazardous Articles (COSTHA) with a brief to inform the audience of current and future developments but also with open ears ready to listen to industry’s comments on where they need to be putting their efforts. This opportunity for dialogue, which is being fostered by a new approach to transparent dealings with the regulated community on the part of DOT, helped attract a record crowd to the event, which took place this past March 9 to 13 in St Petersburg, Florida.
After two pre-conference days, when delegates had the chance to avail themselves of a wide range of training courses and round-table discussions, the forum proper kicked off with papers covering development in international regulations (HCB June 2008, page 6). Matters then turned to more local issues, beginning with a presentation by Janet McLaughlin , dangerous goods specialist at the Federal Aviation Administration (FAA). International development in the air mode had already been covered by Geoff Leach, chair of the Dangerous Goods Panel (DGP) at the International Civil Aviation Organisation (ICAO), who introduced Janet as the ‘Queen of the Packing Instructions’.
Janet began with an overview of enforcement activities. Routine inspections are carried out on around 4,000 US shippers each year, she said. Of these, 72 per cent show no violations, 12 per cent are closed with on-the-spot counselling, and 16 per cent result in some sort of enforcement action, although not necessarily a financial penalty. More recently, the creation of a DOT-wide incident database has allowed FAA and other modal agencies to develop risk-based shipper inspections so as to be able to apply their finite resources more effectively. Prioritisation by using the database is, Janet said, “a huge step forward” in enforcement action, while also lifting from shippers the burden of repetitive inspections by different modal bodies.
The increase in security screening activities since 2005 has led to an increase in discrepancy reporting and has allowed FAA to make wider use of automated outreach, such as the issuance of warning letters. Janet mentioned, however, the intractable problem of the undeclared shipment of oxygen generators – there were 130 reports in the period 1999 to 2007.
FAA is still looking at leak rates in dangerous goods packagings, through a review of DOT incident data. Air pressure differentials and vibration can loosen caps and closures on inner receptacles and FAA is planning to issue a proposal for a rulemaking to address the problem in the near future.
Janet took the opportunity to introduce the COSTHA crowd to Chris Bonanti , recently appointed as director of FAA’s Office of Hazardous Materials. The bottom line, as he sees it, is that “no plane should come down because of hazardous materials”. He promised a standard message from top to bottom across all of FAA’s hazmat specialists, open communication with industry and more outreach efforts to get the message across to industry and the travelling public.
Across the borderline
After a coffee break and the chance to see some of the services and products on show in the exhibition hall, delegates were brought back down to earth by Shane Kelley , international transportation specialist with DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA), who spoke specifically about Mexican regulations and North American cooperation. There was a lot of emphasis during the 1990s in working through the North American Free Trade Agreement (NAFTA) structure, in particular the Land Transportation Standards Sub-committee (LTSS), he explained.
More recently, the North American Security and Prosperity Partnership (SPP) has come to the fore, with its emphasis on enhancing transport safety and security. PHMSA is continuing to work through this forum with its Mexican and Canadian counterparts to enhance harmonisation.
Shane explained the structure of the Secretaria de Communicaciones y Transporte (SCT), the ministry with responsibility for regulating transport activities in Mexico. Its División de Autotransporte Federal (DAF) has a small hazmat staff within the Subdirección de Normas del Autotransporte de Materiales Peligrosos, equivalent to the US Federal Motor Carrier Safety Administration (FMCSA), which is responsible for drawing up the regulations (‘Normas Oficiales Mexicanas’ or ‘NOMs’) and also acts as a hazmat focus for other modal SCT offices. The ICAO Technical Instructions and the International Maritime Dangerous Goods (IMDG) Code are referenced within the standards.
Mexico’s dangerous goods transport regulations are based closely on the UN model regulations, but were developed on the basis of the 8th revised edition, i.e. before the major restructuring. Some have since been updated but others have not, leading to a large number of disconnects between different provisions. Government and industry cooperate in reviewing the standards through a number of committees. The standards must be reviewed every five years but can be updated more regularly if necessary – this poses a challenge in keeping up to date with the UN model regulations, Shane noted. Moreover, there is no single volume of regulations equivalent to 49 CFR in the US.
Some of the more important NOMs for the hazmat transport community are:
NOM-002 The list of materials and special provisions is currently consistent with the 12th revised edition of the UN model regulations. The special provisions are extremely important, Shane said, and offer critical exemptions based on the UN special provisions.
NOM-003 The labelling standards are 99 per cent harmonised with the US, although the toxic inhalation hazard (TIH) placard is still an issue. This NOM is being revised to incorporate the new organic peroxide label, the marine pollutant marking and a new marking for the air transport of excepted quantities, although based on the International Air Transport Association (IATA) marking rather than the ICAO marking.
NOM-004 The placarding standards are similarly largely aligned with US provisions and are again currently being revised to take account of the organic peroxide and marine pollutant changes.
NOM-005 The standard on emergency response information allows the use of the North American Emergency Response Guidebook (ERG) or a standardised document specified in the NOM. A current revision will allow the use of the relevant page(s) of ERG rather than the whole book, and also make the requirement for the consignor and consignee addresses to be shown on the transport document optional for ICAO and IMDG shipments.
NOM-020 The specifications for cargo tanks currently list 300-series standards, although there are plans to adopt the 400 series, which are authorised in Mexico despite not being specifically covered in the standards.
NOM-043 The documentation requirements were revised in 2004 and not include some additional requirements not in US or UN regulations.
The official texts of these and other NOMs can be found at www.economia-noms.gob.mx; PHMSA makes some unofficial English language translations available at http://hazmat.dot.gov/regs/intl/mexico/nomsist.htm and has a guidance document on the major differences between Mexican and US regulations at http://hazmat.dot.gov/regs/intl/mexico/genfuidc2000.htm. Mexico tends to try and harmonise with the UN model regulations rather than the US Hazardous Materials Regulations (HMR), Shane said, although PHMSA works closely with its Mexican counterpart to ensure the differences between the two are as small as possible.
PHMSA is keen to hear from industry on the types of problems it is experiencing so these discussions can be directed in a useful way.
There is no system of reciprocity between the US and Mexico as there is between the US and Canada. This makes cooperation between the two regulators more significant. US special permits are not recognised in Mexico, and the same is true of Mexican permits in the US. There are significant differences in the classification of combustible liquids, in the placarding of limited quantity shipments, and in the carriage of materials of trade (MOT). Rather bizarrely, Mexico forbids the carriage of hazardous and non-hazardous substances in the same transport unit.
There is only one package testing laboratory authorised by SCT to certify UN packages but this body, Normex, does not have the capability to test and certify intermediate bulk containers (IBCs). Therefore, a limited number of manufacturers have been authorised to self-certify their packagings.
Shane also mentioned that the focus of enforcement has shifted in Mexico and, while it was previously limited largely to the inspection of goods in transit on federal highways, the country’s environmental agency, Profepa, is now working with SCT to verify compliance by shippers. Those with businesses in Mexico should expect that facilities are liable to be inspected for compliance with transport, environmental and worker safety standards.
The right way to write
The other aspect of US cross-border activities was addressed by Linda Hume-Sastre , director of the Legislation and Regulations Branch of Transport Canada’s Transport Dangerous Goods Directorate. She began by reporting that, following publication of Amendment 7 in Part II of Canada Gazette in August 2007, the much-anticipated and long-awaited publication of Amendment 6 in Part II took place on February 20, 2008. Amendment 8, which focuses on updating the dangerous goods list to the 15th revised edition of the UN model regulations (from the 11th revised edition) was under development. [Amendment 8 was published this past June for comment prior to publication in Part I of Canada Gazette.]
Linda’s presentation focused on documentation and the shortcomings of the UN model regulations in this regard. In particular, the model regulations are not specific about the format of dangerous goods transport, yet for electronic documentation (‘e-freight’) to become a reality harmonised documentation is essential. The consignor must describe the dangerous goods on the transport document along with “any additional information required in the model regulations except as otherwise provided”, as 22.214.171.124 reads. This indicates that not everything is found in the same place in the model regulations, “so where is it?” Linda asked.
Furthermore, 126.96.36.199 requires that the date the transport document or an electronic copy of it was prepared “or given to the initial carrier” shall be included on the document. There is no clear requirement for the consignor to give the document to the carrier in any form and there is no requirement for the document (or its electronic copy) to be passed to any subsequent carrier. There is no requirement for the document to accompany the dangerous goods or for information from an electronic copy to be made available.
The provisions relating to infectious substances are somewhat more specific, noting that the full address of the consignee shall be shown on the document, together with the name and telephone number of a responsible person, although it does not explained what this responsible person must be able to do.
Linda also queried the value of the declaration in which the consignor states that he has followed all the regulations that apply. In summary, the UN model regulations contain no clear articulation of the responsibilities of the consignor or carrier as far as the provision of the transport document are concerned; there is no requirement as to the whereabouts of the document during transport or storage; there is no retention requirement; the information needed to complete the document is not found in a single place in the regulations; and some requirements are not viable as written.
The source document – the UN model regulations – must provide clear requirements that the modal and national authorities can adopt without major change if e-freight is to become a reality. The possibility for interpretation hinders harmonisation and does nothing to help safety. Linda asked the UN Sub-committee of experts to determine the core information that is required on the transport document – if the modes need anything further, that can be added later but the modal authorities should also question the need for supplementary information. If electronic transmission is used, the information on the document must be available if required. Ultimately, it should be up to industry to determine whether they adopt e-freight systems, the regulators do not need to get involved in this aspect of the business.
One day to the next
The day came to an end with a session on enforcement activities, kicked off by Ryan Posten , director of the Office of Hazardous Materials Enforcement (OHME) at PHMSA, who introduced the Administration’s new Systems Integrity Safety Program (SISP) (HCB April 2008, page 21). He was followed by Vincent Mercadante , national training officer at the same office, who explained OHME’s Investigator Certification Program.
The aim of this initiative is to ensure consistency in investigations across the country and across the modes. It is based on risk-based enforcement standards and performance-based training. Vincent said industry should not be hesitant about contacting OHME – the Office cannot make interpretations but will be able to say what its inspectors will be looking for and how new regulatory changes might affect operations.
Investigators undertake ongoing academic training in the regulations in classrooms and via computer-based training programs. There is also a real-world component based on training in the field alongside experienced personnel prior to validation and certification. Initial certification is broadly based but subsequently investigators will be allowed to specialise in areas such as root cause analysis, behavioural sciences or specific modes or substance groups.
Delegates returned the following day to hear Rick Schweitzer , COSTHA’s general counsel, give his annual review of legislative and legal developments. He began by looking at the hours of service rules, which he said had been “a fiasco” for the past four or five years. In July 2007 the Court of Appeals vacated some time limits but gave DOT until December 27 to reconsider. On December 17 FMCSA issues an interim final rule (IFR), reissuing the same time limits. ‘Public citizen’ filed a motion to invalidate the IFR, which would be very unusual if it succeeded, as the courts do not often tell the regulators what to do. However, in January the challenge was disallowed as the rulemaking had changed.
Therefore, the current hours of service rules will remain in effect for the time being. FMCSA is unlikely to make the IFR final until after the November 2008 election so it would be well into 2009 – and possibly 2010 – before any more changes are made.
On December 26, 2007 DOT proposed new minimum training requirements for entry-level commercial driver licence (CDL) applicants, with a three-year phase-in. Seeing as there are around 40,000 new CDL applicants each year in the US, this would add substantially to training costs. It will be some time before has an impact, Rick said, but it will happen.
Rick then moved on to one of PHMSA’s priority topics, the loading and unloading of bulk containers. PHMSA issued a Notice (not a rulemaking proposal) on January 4, 2008, summarising recent incidents and referencing recommendations from the National Transportation Safety Board (NTSB) and Chemical Safety Board (CSB). It gave an overview of current federal regulations and provided some recommendations for good practice. “This all makes sense,” Rick said, but it is only recommendatory. However, PHMSA invited comments and industry is hopeful that there will be some regulation, if only to establish PHMSA’s jurisdiction over loading and unloading activities. From the floor, Bob Richard, deputy associate administrator of PHMSA, confirmed that the Administration is looking at regulating these activities and said a notice of proposed rulemaking (NPRM) could be expected during 2008.
Whatever you want
Turning to the expected Hazardous Materials Transportation Act (HMTA) Reauthorisation, Rick explained that Congress issues a regulatory directive to DOT every few years. This could be a big deal next time around, covering funding and the extent of regulatory programmes. The Interested Parties (IP) Group has made recommendations to Congress and PHMSA, which is likely to present a Bill for industry comment during the first half of 2008.
Rick proceeded to list the IP Group’s current priorities.
1. Industry wants to see stronger pre-emption standards to help achieve regulatory uniformity. DOT has a history of managing the hazardous materials regulations and its people understand the rules. Industry has a well established working relationship with DOT’s various agencies, which is not the case with other federal bodies.
2. Industry wants to see duplicative regulatory authority and redundant background checks eliminated. The new Transport Workers Identity Card (TWIC) is seen as a step in the right direction.
3. Carriers would like to see their responsibility for non-compliant shipments clarified. It is not always the carrier’s fault if there is a violation of the HMR.
4. The uniform permitting and regulation of hazardous materials carriers at federal and state level should be led by federal agencies. If states are going to impose fees and register those involved in inter-state transport, it should be done uniformly under US DOT direction.
5. As noted before, industry wants to clarify DOT’s regulatory authority over loading, unloading and handling activities.
6. A better definition of ‘hazmat employee’ is needed.
7. The inspection authority to open shipments needs to be tightened.
8. More funding should be provided for employee training.
Rick’s final subject was the thorny issue of hazmat routing. To recap: the District of Columbia (DC) Council imposed a ban on certain hazardous materials, particularly TIH substances, within 2.2 miles of the Capitol; the ban was challenged by CSX, whose railway line passes within that radius, which claimed that routing restrictions were pre-empted under the Federal Railroad Safety Act (FRSA) and HMTA. There was widespread support for CSX from industry. The DC Council’s position was that the routing provisions in HMR were not sufficient; industry said it was up to DOT to determine if this was the case, not individual authorities. Several other city authorities were known to be following the case closely and were readying to impose similar restrictions if the DC Council won its case.
American Trucking Associations (ATA) obtained a pre-emption determination from FMCSA so the DC ban does not cover road transport. The rail case is now at court where, Rick said, Judge Sullivan would like to rule in favour of the DC Council.
However, the legislation does not appear to allow it. The new 9/11 Commission Act looks like it will call on DOT and the Department for Homeland Security (DHS) to promulgate rail security requirements, including the routing of security-sensitive materials, which will definitely outlaw DC’s moves, Rick said. He expected HM-232E to be re-opened shortly [it was issued as an IFR on April 16].
Some of the fruits of the new DOT/PHMSA enterprise approach were on show during the next session, where Jeanne Zmich , vice-president of Labelmaster, presented the Blueprint for Success designed to help enhance the image of the hazmat professional. Too often, it seems, compliance becomes an issue only when a non-compliant situation is discovered. “The better we perform, the more unnecessary we appear,” as the document remarks. Safe transport of dangerous goods is the ultimate goal, but hazmat personnel need proper recognition not only within their companies but also in the wider community for the work that they do to ensure that dangerous goods continue to move safely. At the moment, there is a lack of recognition, which brings with it limited opportunity for upward mobility within corporations and difficulty in recruiting good young people to replace the knowledge that is retiring.
Several conference presentations have been made and COSTHA has invited the Institute of Hazardous Materials Management (IHMM) to participate in the initiative. A page has been developed on the COSTHA website to provide further information (www.costha.com/eihmp/enhancingtheimage.htm). PHMSA is being encouraged to institute an awards programme to recognise best practice and further outreach efforts are being made with academia and the press.
Sean Broderick , hazardous materials manager at Procter & Gamble Distributing, explained the hazards involved in reverse logistics operations. Often goods are being returned to the manufacturer because they are defective, so this is a particular problem when the goods themselves are hazardous – perfumes, cosmetics, paints, batteries, aerosols, camping equipment, and so on. More often than not, the person consigning the returned goods has no knowledge of the hazardous materials regulations.
COSTHA and PHMSA are working together to provide solutions to these hazards and are looking for input from interested parties at a workshop and other forums. Sean sent out a general invitation to get involved in the process.
Dave Madsen , hazmat analyst with Autoliv Inc and now heading COSTHA’s Best Management Practice Sub-committee, suggested some ways in which best practice gets circulated – at dinners, at the bar, at the water cooler - but nine times out of ten it is after a problem occurs. The important thing, he said, is to recognise best practice when it occurs. Companies are tending to cut down on executive travel so, when attending a conference, it is important to take something back to the office, implement it, measure its benefits and explain results and ideas to others.
“Best practice doesn’t stand still – it’s a continual process of improvement,” said Dan Wieten , manager of the Environmental Coordination Office at Toyota Motor Sales. This is as true in the training sector as anywhere else. Before developing training programmes it is vital to get out to facilities and see what they do. Standard operating procedures should form the basis of any training programme, so that anything that is not necessary can be taken out. It is wasteful to train people to do stuff they will not be doing and risks losing the interest of those being trained. Training courses should be interactive and competitive.
An important feature of Toyota’s training programmes is that lessons learned in the classroom are supported by posters and other visual controls in the workplace to remind employees how to do stuff right.
Continuing with the training theme, Neil McCulloch of Labelmaster concurred that training is a process. Best practice for trainers, he said, is to steal the best stuff but to be creative and reinvent it. “Know your audience; know your stuff; and know when the audience is stuffed,” was his advice. Training has always been crucial to safety but there are various developments now coming together that will push it further up the agenda: the introduction of competency-based training for ICAO inspectors; the development of instructor best practices by PHMSA and the Dangerous Goods Advisory Council (DGAC); the COSTHA/PHMSA initiative on enhancing the image of the hazmat professional; the coming together of the new Dangerous Goods Trainers Association (DGTA); and the proposal to make IMDG Code training mandatory for shoreside staff. All of this and more will be discussed at Labelmaster’s Dangerous Goods Instructors Symposium, scheduled to take place in Florida in October.
The last word
The conference drew to a conclusion with a second presentation from Bob Richard , deputy associate administrator of PHMSA, looking at the next 35 years of hazmat regulation. “We cannot stand in the way of technology,” he said. “We need to see how we can harness technology to improve safety and efficiency”. The difficulty is getting management buy-in – there needs to be a cost/benefit improvement as well as safety enhancements.
PHMSA’s key strategy will be to build confidence in the hazardous materials transport network, because accidents create political pressure. PHMSA will use every tool at its disposal – not just rulemakings and enforcement but also public education, partnerships with industry representatives, new technologies and so on. Bob pledged that the Administration would be transparent and encourage participation and confidential reporting.
Where are we going? To start with, Bob said, it is important to recognise that the system is fantastically safe. However, when incidents happen they can be serious. Accidents can help set the regulatory agenda and generate information that can be disseminated to help improve safety.
A major challenge is the large number of stakeholders in the supply chain, especially in air transport. More and more shippers and other players are emerging, which are not necessarily properly trained or aware of their responsibilities – the increase in the use of online auctions is a case in point.
“Continuous improvement is the only way to go,” Bob said. Safety has improved but the pace of improvement has levelled off; regulators are now using data to examine where things are going wrong. PHMSA will highlight the frequent risks, notably cargo tank truck rollovers and near misses. It is also looking to expand its toolbox, for instance through the use of the pipeline industry’s ‘integrity management’ approach. This involves finding safety risks and fixing them before they lead to failures.
Regulators need to understand industry’s business systems if it is to be able to offer proper incentives to self-disclose non-compliance. It is also important to recognise that accidents cannot be avoided altogether, so the response capability needs to be maintained. Only 12 per cent of US fire departments are capable of handling a major hazmat release, Bob said, and three-quarters of firefighters in the country are volunteers.
As a rule, Bob said, better system design can take human error into account. “Don’t hold people responsible for mistakes,” he said. “Change the system.”
Many of these themes will be reflected in the ‘Next Generation Hazmat Transportation Act’ that Bob hoped to be able to release for comments soon. It aims to improve safety and reduce risks and to strengthen partnerships between regulators and the regulated community. In particular, he is looking to establish a national centre of excellence, drawing on the experience of industry as well as federal, state and local enforcement personnel. More flexible use of Hazardous Materials Emergency Preparedness (HMEP) grants programme will help generate better partnerships with the emergency response community.
Bob gave some examples of how PHMSA is currently working with other agencies and with industry bodies to help improve safety in hazmat transport. The Rollover Prevention Initiative, in partnership with FMCSA, National Highway Traffic Safety Administration (NHTSA) and the National Tank Truck Carriers (NTTC), is focusing on driver behaviour, training and the application of electronic stability controls. Other issues include better road design and signage. The partners are pulling in expertise from insurers and have also put together a DVD to help improve driver behaviour.
Led by the Federal Railroad Administration (FRA), the Next Generation Tank Car initiative is moving towards performance-based standards for rail tank cars, while other programmes being progressed by industry, including the Dow/Chemtrec pilot project on track and trace technologies for rail tank cars, also aim to reduce the impact of railroad accidents.
Bob ended with a wish list:
(a) an international register of hazardous materials shippers;
(b) fire suppression/monitoring for unit load devices in aircraft;
(c) the substitution of high-hazard substances;
(d) leak detection and repair of bulk packagings;
(e) closure that work and minimise the significance of the human element; and
(f) accident avoidance and peripheral vision aids.
“There is no way we can anticipate everything,” Bob concluded, “but we can’t stand in the way.”
The 2009 COSTHA annual forum and expo will take place in Long Beach, California from March 29 to April 1; more information can be found at www.costha.com.