Groups Criticize New Rule on Special Hazmat Permits

This story appears in the Sept. 6 print edition of Transport Topics.

Several trade groups told federal regulators that requiring more detailed information on applications for special permits to haul hazardous materials will not increase hazmat safety and will increase the paperwork burden on applicants.

Officials with the Pipeline and Hazardous Materials Safety Administration said the proposed rule was designed to strengthen oversight of the special permits program.

The new rule calls for the application to include information such as an estimate of the number of operations expected to be conducted or the number of shipments expected to be transported under the special permit; an estimate of the number of packagings expected to be manufactured under the special permit; and a statement as to whether the special permit being sought is related to a compliance review, inspection activity, or enforcement action, respectively.

In addition, PHMSA wants an analysis of “potential failure modes and consequences.”

“The proposed revisions will enable PHMSA to better evaluate the fitness of an applicant, including its ability to safely conduct the operations that may be authorized under a special permit,” the agency’s proposed rule said.

PHMSA issued the new rule after the agency’s special permitting process was heavily criticized earlier this year in a report by the Department of Transportation Inspector General and by House Transportation Committee Chairman Rep. James Oberstar (D-Minn.), who said the agency was “cozy” with the industry.

A special permit allows carriers and shippers to package or ship a hazardous material in a manner that is not authorized by hazmat regulations. Special permits provide a mechanism for testing new technologies, promoting increased transportation efficiency and productivity, and ensuring global competitiveness, PHMSA said.

The proposed rule was the second change made to the special permits process in recent months. In late July, PHMSA published a proposed rule that would eliminate requirements for special permits to haul certain hazmat ranging from liquefied petroleum gas to anhydrous ammonia fertilizers under certain conditions (click here for previous story).

Commenting on the new proposed rule, the Association of HazMat Shippers said the special permits are “essential to progress and to our economy” and that the “adversarial nature of this proposal toward industry is a serious step in the wrong direction.”

“We are well aware of legislative parties and DOT personnel who continue to misunderstand how important these authorizations are to jobs,” wrote Lawrence Bierlein, AHS’ general counsel. “We also sense they are indifferent about the harm their misunderstanding causes to a program that has operated for decades with a remarkable safety record.”

In other written comments, several trade groups, including American Trucking Associations, disputed claims by PHMSA that the new rule would streamline the process and make hazmat transit safer.

“Any additional information required of the special permit applicant will increase the costs to the applicant and result in an increase in the agency’s resources necessary to evaluate the special permit application,” wrote Richard Moskowitz, ATA’s vice president and regulatory affairs counsel.

ATA said it supports provisions to allow electronic applications for special permits and a requirement that all supporting documentation be written in English. However, the trucking industry group said

it opposed such requirements

for applicants as providing all known locations where the special permit will be used, identifying

the chief executive officer or president, and giving a Dun and Bradstreet data universal numbering system identifier.

There also was concern over a plan by PHMSA to conduct a “fitness evaluation” to determine if a hazmat hauler should be granted a special permit.

The National Propane Gas Association agreed that the agency should strengthen oversight of the special permits program but noted in comments by Michael Caldarera, vice president of the association’s regulatory and technical services, that the proposal is “vague and unclear” on how PHMSA plans to evaluate the fitness of an applicant.

The Commercial Vehicle Safety Alliance agreed.

“As PHMSA moves forward with considering fitness we believe more needs to be explained as to how it intends to determine it and which sources of information they intend to use for assessing it,” wrote Stephen Keppler, CVSA executive director. “This is an important element in helping manage expectations for the industry so they know what is to be expected of them, as well as in monitoring, oversight and enforcement.”