As I noted in Friday’s blog (see: “NPRM Hazmat Transportation Safety and Security”) the PHMSA published a Notice of Proposed Rule Making (NPRM) to ‘enhance’ the enforcement of DOT’s Hazardous Materials Regulations (HRM). Specifically, it is designed to improve the ability of the various DOT inspectors to detect undeclared hazardous material in transit. Unfortunately, it completely fails to take into account the safety of DOT inspectors or anyone else in the vicinity when one of these ‘openings’ takes place.
HMR Standards
The HMR provide standards for containers and packagings that hold hazardous materials in transportation. There are a variety of construction and testing standards that ensure that the containers and packagings are capable of standing up to the normal rigors of transportation and the most common forms of mishandling that occur during that transportation. For the most part, when these standards are followed, the public, first responders and transportation workers have been adequately protected from contact with these hazardous materials.
Additionally, the HMR provides requirements for the marking and documentation of the hazardous materials shipped in the various systems used for transporting those hazardous materials. The documentation and markings provides information to those that are handling these hazardous materials in transport so that they may take the appropriate precautions in handling this material.
These markings and documentation also provide valuable information to emergency personnel responding to accidents in transportation involving these hazardous materials. That information allows these first responders to ensure the safety of the general public while protecting themselves from the effects of these materials in the event of a release subsequent to a transportation incident.
Undeclared Hazardous Materials
If a company or individual offering hazardous materials for shipment does not appropriately mark the shipment and/or provide proper documentation of the hazardous nature of the materials being shipped, there is generally no way for transportation personnel, emergency responders, or the general public to tell that the material is hazardous; unless, of course, there is a release in transit. In that case the first indication that the material is hazardous is often the death or injury of a transportation worker or first responder.
There are many reasons that an offeror (one who offers material for shipment) might decide not to properly mark a hazmat shipment or complete the required documentation for a hazmat shipment. In some cases it is just ignorance of the appropriate requirements. Other times it is simply a matter of trying to avoid the shipping surcharge that usually comes with shipping hazmat. Another, more recent reason suggested in the NPRM is terrorism. PHMSA notes that “it is likely that terrorists who seek to use hazardous materials to harm Americans will move those materials as hidden shipments” (page 57282).
All of these reasons that lead offerors to avoid properly marking and documenting hazmat shipment also tend to lead to inadequate containers or packagings being used to protect the hazmat materials from the rigors of the transportation environment. Substandard materials, in turn, lead to an increased probability of unintended releases (or possibly intended releases in the case of terrorists) of hazardous materials in transit. This is the general reason that Congress authorized DOT to undertake these ‘enhanced enforcement activities’ when they passed the Hazardous Materials Transportation Safety and Security Reauthorization Act (HMTSSRA) of 2005.
Opening Undeclared Hazmat Packages
Ultimately PHMSA has decided that the only reasonable way to ‘detect’ these undeclared hazmat shipments is to open containers and/or packagings that hold hazmat containers, hoping to find markings on the interior containers that will be labeled in such a manner that the hazardous materials will be identifiable. I question the assumption that it will be safe to open the outer container or packaging.
If it is assumed that the package was prepared by someone ignorant of the marking and documentation requirements for hazmat shipping, it should also be assumed that the offeror was ignorant of the adequate packaging requirements of the same regulation. Thus, by definition, the interior packaging cannot be assumed to be intact or safe.
If it is assumed that the package was prepared by someone that was trying to avoid the excess costs associated with hazmat shipping surcharges, it should also be assumed that the offeror would also avoid buying the appropriate combination packagings or container required to safely contain the hazmat. Again, the interior package cannot be assumed to be intact or safe.
Finally, if it is assumed that the offeror was actually a terrorist attempting to ship hazardous materials to a confederate or shipping hazmat as a weapon, it must be assumed that there would be anti-handling devices associated with the packaging to prevent an ‘unauthorized’ opening of the shipment from prematurely divulging the intended attack. In this case the interior package must be assumed to be unsafe.
From just these three cases we can see that it would be extremely unwise to allow a DOT inspector to open a potentially undeclared hazmat shipment in transit. At the very least there should be provisions for isolating the package/shipment in a safe location and requiring the inspector to be properly equipped with personal protective equipment appropriate to the worst case release expected for material thought to be in the shipment.
Inadequate SafetyReview
It is clear to me that the people associated with the preparation of this NPRM have never been involved in a chemical hazard review or a process hazard analysis. There has been no attempt to take into account the safety of DOT inspectors or transportation personnel when potentially undeclared hazmat packages are opened. This gross failure to take into account the potential for personnel exposures to dangerous chemicals would be considered a criminal violation of several OSHA and EPA regulations if it were to take place in a chemical facility.
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