DGAC's 2015 annual conference returned to New Mexico, leaving delegates breathless with the elevation and the litany of major rule changes
Albuquerque, New Mexico proved quite an appropriate location for the 37th annual conference and exhibition of the Dangerous Goods Advisory Council (DGAC), as anyone who has seen the volume of hazmat being moved around during the TV series Breaking Bad will know.
But there was nothing illegal on show during the three days of the DGAC event, which took place at the Hotel Albuquerque this past 2 to 4 November. There were, though, a number of new exhibitors, particularly those offering systems and hardware designed to help shippers comply with new requirements under the HazCom 2012 regulations – the US’s implementation of the Globally Harmonised System of classification and labelling of chemicals (GHS) as it applies to supply and use.
The importance of that was highlighted in his introduction to the conference sessions by DGAC chairman Ben Barratt, who referred to issues members are reporting on the GHS marking of outer packagings, the GHS placarding of tanks and the use of GHS pictograms on packagings in air transport.
Ben also promoted the role of the Council, noting that it is the only non-governmental organisation that attends all the regulatory meetings – the GHS Sub-committee, of course, but also the UN Sub-committee of Experts on the Transport of Dangerous Goods (TDG) and those of the International Maritime Organisation (IMO) and International Civil Aviation Organisation (ICAO) relevant to dangerous goods transport.
Ben also reported that DGAC’s quarterly meetings have now been extended to run for three days, so that attendees can always get one-to-one contact with the regulators. He urged members to get involved, saying: “You are the experts in your field.”
Ben handed over the podium to S Wayne Fast, long-time manager of hazardous materials management at PPG Industries but now retired, who was in an excellent position to give his perspective on the way the business developed over his 39-year career.
Transport is an important element in the risk profile of manufacturers, Wayne began. They cannot avoid that risk but, by identifying it, they can manage it. PPG was – and remains – heavily involved in the chlor-alkali business and producers identified very early on that managing transport risk was vital if they were to be allowed to operate. The equipment used for handling chlorine were standardised in the early 1900s, making it simpler for responders to deal with small leaks. The industry, whose products are often highly hazardous, has had a good safety record ever since.
Process safety management is tedious, Wayne admitted, but major accidents keep it in the minds of operators. One of those major accidents happened in 1984 in Bhopal, India. After that horrific accident, the chemical industry became more aware of issues surrounding inventory and the risks posed by hazardous chemicals in storage at their sites. PPG sent teams out to its plants around the world to ensure that those risks, particularly those involving chlorine, were being managed consistently.
Producers have to be proactive in managing risk, Wayne said. “There is nothing intuitive about dangerous goods compliance. Everyone needs to be trained.”
That was, perhaps, highlighted by a major piece of regulation in 1991. The HM-181 rulemaking introduced the concept of performance-oriented packaging (POP) and major changes to hazard communication standards and was, Wayne said, “a turning point” in the management of risk. But old habits die hard – Wayne said he was still getting queries about oddities such as placards with no words some 20 years later.
It was always implicit in the regulations that hazmat employees would be trained but it was not until HM-126F appeared in 1992 that training requirements were laid down explicitly. PPG reviewed all its operations to determine exactly which employees needed training and held train-the-trainer sessions to ensure conformity in training across the organisation. It also set up a process to communicate changes to the regulations and corporate policies across the business. Such sessions also gave the opportunity to get logistics and compliance people together from different offices.
Wayne also noted that there is a commercial aspect to this: customers expect that a package from PPG (or whoever) will look the same, no matter which plant it comes from. Conformity across the organisation is not just a matter of aligning procedures.
In fact, POP did not help in this regard. It gave manufacturers more flexibility in packaging design and made it hard for shippers to figure out what they needed. There is no longer consistency in design between packaging manufacturers, making it hard for shippers to achieve that consistency in presentation, particularly in international operations.
Package closures also became more important as a result of HM-181. Each facility had to know how to close packages in the same way as they had been tested. That means a lot of training and regular maintenance of mechanical closing systems.
Wayne summed up his experiences of hazmat compliance in three succinct points:
- Know your risks! What hazards do your products present, all the way through the supply chain.
- Communicate and train all through the organisation.
- Know your packaging! Communicate with the purchasing team to ensure compliance and consistency.
The rules change regularly and manufacturers need to have someone keeping an eye on them, Wayne stressed. Information should be passed down to all relevant departments, along with the implications on those affected.
More on GHS came from consultant/trainer Gene Sanders, who HCB readers will know well through his regular “View from the Porch Swing” column. He addressed the problems shippers are facing in preparing safety data sheets (SDSs) in accordance with the requirements of GHS and in particular the difficulty of populating Section 14 on the basis of the other 15 sections.
SDSs are not transport documents but, Gene said, air carriers have long asked for them so they can check that the information on the package matches the description on the SDS. Industry is beginning to see this from ground carriers too. But there is a major problem: there are two different systems – GHS and TDG – that communicate the same hazard. Any mismatch between the information provided by the shipper can easily lead to consignments being rejected or delayed, with consequently unhappy customers and the potential for enforcement action.
The two systems cannot easily be reconciled, Gene reasoned. The transport regulations do not only consider the intrinsic hazards posed by a substance but also the size of the consignment, with different rules for bulk and non-bulk shipments; the type of packaging used; the mode of transport; the destination (domestic, international or special case); the use of the product being shipped – especially in the case of wastes or consumer commodities; the level of concentration/dilution; the use of temperature control; and even, in the case of the carriage of certain live crustaceans by air, the phases of the moon. By contrast, GHS classification is consistent and looks only at the intrinsic hazards of the substance involved.
In a series of well worked examples and using his customary wit, Gene took attendees through several instances where there will inevitably be a mismatch between the GHS and transport classification.
If carriers fail to understand that there are two ways to communicate one hazard then it will inevitably cause delays in shipments. Eventually this will result in what Gene described as “user ennui”, leading to the temptation to ignore the requirements. This defeats the purpose of safety regulations, he said. The only answer is training, training and more training, not only for shippers but also for those who are accepting and checking shipments, whether for air or ground transport.
THE WORD FROM THE HILL
After lunch and the opportunity to take a look around the exhibit hall, delegates returned to the conference room for three presentations on domestic regulation changes given by representatives of the modal authorities.
The session began with Charles Betts, director of the Standards and Rulemaking Division in the Pipeline and Hazardous Materials Safety Administration (PHSMA), who gave a roundup of recently published rulemakings. He alerted attendees to the fact that the familiar HM-xxx docket numbering system, which appears to be relatively user-friendly but does not match the system used by other agencies, is to be phased out shortly.
An interim final rule was published on 30 October 2015, taking effect one week later, to prohibit the carriage of electronic smoking devices (e-cigarettes and the like) in checked baggage and to prohibit them being charged while onboard the aircraft. This brings US requirements in line with those of ICAO. Charles reported that the Department of Transportation (DOT) will issue a separate rule to prohibit the use of e-cigarettes onboard aircraft.
A final rule under HM-233E was published on 10 September 2015 and took effect on 9 November. This rulemaking was mandated by the Moving Ahead for Progress in the 21st Century (MAP-21) Act and required PHMSA to include its standard operating procedures and criteria used to evaluate applications for special permits into the Hazardous Materials Regulations (HMR).
The final rule under HM-251 was published on 8 May 2015 and took effect on 7 July. This is an extensive and comprehensive rulemaking on enhanced tank car standards and operational controls for high-hazard flammable trains, drawn up in coordination with the Federal Railroad Administration (FRA). It is part of DOT’s response to the Lac-Mégantic accident in Quebec in July 2013, which has been developed in collaboration with Transport Canada, and to recommendations from the National Transportation Safety Board (NTSB).
The rulemaking is designed to reduce the consequences and, in some instances, reduce the probability of accidents involving trains transporting large quantities of flammable liquids. It introduced new definitions for trains hauling different quantities of flammable liquids; created regulations for speed restrictions, braking systems and routing; defined a new tank car design and construction standards; and incorporated a new sampling and classification programme for unrefined petroleum-based products (i.e. crude oils).
HM-251 has not been without controversy. Charles reported that it has generated six lawsuits, which are currently in progress, and six appeals. PHMSA’s response to those appeals was due on 6 November.
The final rule under HM-215M, the regular biennial update to maintain harmonisation between the international provisions in HMR and the global regulatory framework, appeared on 8 January 2015 and was retrospectively effective from 1 January 2015. Work on HM-215N, which will take effect on 1 January 2017, was due to start in early 2016 but, Charles warned, progress may be caught up in the election cycle and there could be a delay. The notice of proposed rulemaking (NPRM) is expected in the summer.
Charles moved on to look at some recently published NPRMs, indicating in particular where PHMSA is seeking input from industry in the development of final rules, ten of which were nearing publication at the time of the meeting. The NPRM under HM-233F was published on 30 January 2015, proposing the incorporation of a number of special permits into HMR, again as part of the MAP-21 remit. There have been a number of such rulemakings in recent years, largely without controversy, and a final rule was anticipated in November 2015.
Also not expected to cause any nasty surprises was HM-218H, which makes miscellaneous changes to HMR. The NPRM was published on 23 January 2015 and a final rule was expected in 2015. It covers some NTSB recommendations, some responses to petitions for rulemaking and some editorial corrections.
The NPRM under HM-253 does have greater implications, addressing as it does the thorny topic of reverse logistics. The NPRM was published on 11 August 2014 and a final rule was due in November 2015, although as of end February 2016 this has still to appear.
An advance notice of proposed rulemaking was published under HM-251B on 1 August 2014, with an NPRM expected by the end of February 2016. This is a companion piece to the enhanced tank car safety rule and deals with topics such as oil spill response and information sharing.
The NPRM under HM-233D, dealing with the safe transport of bulk explosives, was published on 15 July 2014 and the final rule was about to be published at the time of the DGAC conference. The rulemaking was based on two petitions for the incorporation of long-standing safety permits and PHMSA was keen to see this adopted so that those could be used by industry at large.
Another miscellaneous rulemaking, HM-260, was expected in November 2015. It would have no comment period as it was purely addressing some editorial errors in HMR.
PHMSA issued an NPRM under HM-241 as long ago as December 2013, proposing to adopt in HMR Section XII of the American Society of Mechanical Engineers (ASME) Code for the design, construction and certification of transport tanks as well as the National Board Inspection Code (NBIC) on the qualification and maintenance of transport tanks. A supplementary NPRM was expected in December 2015, reflecting a more recent edition of the ASME Code.
Another advance NPRM was published in May 2012 under HM-234, responding to petitions relating to the manufacture, use and reuse of DOT-specification gas cylinders. An NPRM was due in December 2015.
Perhaps sensing that this docket overload was beginning to affect the post-lunch lull, Charles moved onto something a lot more exciting – the impending launch of the Online CFR (oCFR) system – which, he said, is “going to be a game-changer”. The system, a PHMSA Portal Product, will connect the Code of Federal Regulations (CFR) to various databases by regulatory section or part. The first release of oCFR, due in the autumn of 2016, will connect CFR with letters of interpretation, rulemakings, petitions for rulemaking and outreach and training publications, making it easier for the regulated community to keep up to date with all applicable requirements.
Charles concluded by observing that PHMSA has never been as busy in the past 24 years as it has been now. “The easy stuff is already in the book,” he said. The agency is now dealing with the hard stuff – which can get political. But it is also hiring new staff. “Stay tuned,” he urged the audience. “There’s lots more to come!”
ROAD AND AIR
Vincent Babich, transportation specialist at the Federal Motor Carrier Safety Administration (FMCSA), brought the audience up to date with developments in the Hazmat Safety Permit Program. MAP-21 mandated FMCSA to review and update the programme and the agency reported back to Congress in March 2014 with some recommendations.
Two rulemakings have emerged from this process, the first to distinguish between the “issuance” and the “renewal” of permits and the second to specify that suspensions and revocations are tied to 385.421. These changes, Vincent said, provide for continuous monitoring of hazmat carriers and provide a second level of review.
Along with the rule changes, FMCSA issued a notice of change in enforcement policy on 19 June 2015. All the changes took effect on 18 August 2015.
Vincent also mentioned that FMCSA has revamped the route registry, which is now much easier to use. The existing registry was well out of date but states will now be required to provide the agency with information regarding any changes.
John Carter, deputy director of the Office of Security and Hazardous Materials Safety at the Federal Aviation Administration (FAA), had some interesting comments to make, warning the audience that “whether you know it or not, someone is re-shipping your product”. This creates all manner of liabilities but is virtually impossible to monitor.
Why is that? “We are a nation of re-shippers,” John said, as a result of the massive growth in e-commerce. Many of those selling goods online have little or no hazmat training or experience, or are just not aware that there are rules they should be complying with.
Based on what FAA is seeing in the field, John again warned the audience, “If your product will fit in a suitcase, at some point it will go in a suitcase, and on an aircraft.”
John mentioned the issue, raised by Gene earlier in the day, of the role of the SDS in air transport. “Section 14 has never been a source of information for air shipping,” he insisted, pointing out that the US does not even require it to be filled in, nor regulate its contents. As a result, though, hazmat transport information is sometimes missing, wrong, or based on highway exceptions. GHS rules and labelling are improving matters, John said.
He also reported that a lot more – and different – hazmat is turning up in passenger baggage these days, especially battery-powered vehicles (e-bikes, hoverboards and the like) but also chemical kits, hydrogen peroxide for medicinal purposes, car parts (shock absorbers, air conditioning units), e-cigarettes and a lot of pesticides. There is also a problem with university employees and professors taking chemicals or other hazmat on aircraft when going abroad.
John handed over to his FAA colleague Angel Collaku to give a roundup of enforcement activity at the agency. This part of the presentation will be covered in the second part of this report in the April issue of HCB Monthly.[post_title] => The high life [post_excerpt] =>
DGAC's 2015 annual conference returned to New Mexico, leaving delegates breathless with the elevation and the litany of major rule changes
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