What You Need to Know About Transporting Hazardous Materials

Glenn P. Wicks, Esq. and Kenneth Holloway

February 2007

What comes to your mind when you hear the term "hazardous material” or "hazmat”? Do these terms make you more safety-conscious? Does a can of chemical product with a strange smell come to your mind? Do you imagine diamond-shaped warning labels and other familiar symbols of danger? This article, the first of two in a series, will give you an overview of how hazardous materials are regulated, particularly in transportation. The next article will provide you with more specific advice on what to do if you somehow encounter a hazardous materials problem.

Working in the construction industry, you should already be aware that some of the materials you work with can be quite dangerous. Some materials are more so, while some others are not so dangerous under normal circumstances. When one deals with these dangerous products on a daily basis, it is only natural that all the reminders of their potential danger become old news. However, you should avoid this natural tendency and remind yourself of the consequences of not taking seriously the potential danger of some of the materials you work with.

Case in Point
In 2003, a painting company’s box truck caught fire on interstate 465, near Indianapolis, probably due to a careless mishandling of a cigarette. The fire could not be controlled and 13 people riding in the back of the truck were severely burned as a result, with a few of them eventually dying. Spilled paint thinner, a material that the victims worked with on a daily basis, seemed to have been the major cause of the deadly fire.

As illustrated by this tragedy, one person’s mishandling of a dangerous material poses danger not only to oneself but also to the people nearby. The government, therefore, has enacted regulations to protect you and also to protect the public. The Environmental Protection Agency monitors and regulates hazardous substances that pose a risk to the environment. The Occupational Safety and Health Administration requires employers to train their employees about how to properly work with dangerous materials and provide safe working environments for them. And, the Department of Transportation has the authority to regulate transportation of hazardous materials. This article and the one that will be published next month concentrate on the DOT regulations on hazardous materials.

Hazardous materials that a variety of different authorities regulate overlap considerably but are not the same, as their regulations have different purposes. OSHA uses the term "hazardous and toxic substances,” which is defined as those chemicals present in the workplace that are capable of causing harm. The term chemicals includes dusts, mixtures and common materials such as adhesives, paints, fuels, compressed gases and solvents. OSHA currently regulates exposure to approximately 400 substances.

The EPA uses the term "hazardous waste,” which is a waste with properties that make it dangerous or potentially harmful to human health or the environment, and the Agency provides a list with more than 500 of them.

The DOT uses the term "hazardous materials,” which is also commonly referred to as "hazmat.” The DOT designates a material as hazardous if it is capable of posing an unreasonable risk to health, safety, property and the environment when transported in commerce.

The "HazMat” road signs on the interstate highways and the placards on the side of trucks relate to the DOT’s effort to regulate transportation of hazardous materials. They are part of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) that specify requirements for the safe transportation of hazardous materials. The paint truck tragedy mentioned earlier illustrates how hazardous materials can be particularly dangerous when being transported.

Am I Going to Get in Trouble? It is important to note that the HMR regulates hazardous materials when they are transported "in commerce.” If you are engaged in delivering or shipping products that are subject to the HMR to another user for compensation or in other business arrangement, then you could be violating the HMR. More specifically, the HMR apply to any person who offers or transports hazardous materials by any mode, including motor vehicle, rail car, vessel or aircraft. Shippers, brokers, forwarding agents, freight forwarders and warehousers are all classified as offerors under these comprehensive regulations.

It is important to understand that the HMR would apply to anyone who performs, or causes to be performed, functions related to the transportation of hazardous materials. If you suspect that you are sending or carrying hazardous materials regularly under any business arrangement, then you should examine the requirements of the HMR carefully.

The Pipeline and Hazardous Materials Safety Administration, formally the Research and Special Programs Administration, is in charge of making and revising the HMR. As the next article will explain more in detail, the DOT’s auxiliary administrations—the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, PHMSA, and the United States Coast Guard (it has moved to the Department of Homeland Security since 2003 but is still in charge of enforcing the HMR in maritime transportation)—are responsible for investigation and enforcement actions for their respective transportation mode. So, if you ship a hazardous material by air without proper labeling or packaging, the FAA would investigate your violation and then give you an appropriate sanction.

Both the intensity of oversight and the size of penalties have been increasing in HMR enforcement. With hazardous materials being a part of our daily lives, increased vigilance is necessary.

For example, the FAA has increased its enforcement of the HMR concerning air transportation substantially since the notorious 1996 ValueJet accident. In this accident, illegal transportation of more than 100 full chemical oxygen generator canisters without safety caps was blamed as a major cause of the loss of 110 lives. Federal law currently provides for civil penalties of not more than $50,000 and not less than $250 for each violation of the HMR (49 U.S.C. § 5123). This represents doubling of the penalty by Congress from $25,000 in 2005.

Since one accident usually involves violations of multiple HMR provisions, one mistake could lead to a hefty penalty. For example, penalties for improperly shipped hazardous materials by air routinely exceed $100,000. In addition, an individual who willfully violates the HMR may be fined up to $250,000 and/or be imprisoned for not more than five years; for a business entity, the fine could be up to $500,000 (49 U.S.C. § 5124).

HMR Requirements
There are five basic HMR requirements: training, identifying, packaging, communicating and reporting. First, if you are a hazmat employer—in other words, if your business involves using employees in connection with transporting hazardous materials, or causing hazardous materials to be transported, then you need to train your hazmat employees, the employees who directly affect hazardous materials transportation safety, before they are engaged in their transportation duties. They need to be retrained at least every three years and on a continuous basis as relevant HMR changes or their job function changes occur.

Second, you need to be able to classify and identify hazardous materials. This means that you should at least be familiar with the Hazardous Materials Table, found in the Code of Federal Regulations at 14 CFR 172.101. The table lists several thousands of the most commonly transported hazardous materials. For each entry, the table provides the proper shipping name, hazard class or division, identification number, packing group, required hazard warning labels, packaging authorization, per-package quantity limitations for passenger and cargo aircraft, and special provisions. Without being familiar with the table, it would be very difficult, if not impossible, to satisfy the third and fourth requirements for shipping hazardous materials.

Third, transportation of certain hazardous materials may be either forbidden or not, depending on how it is moved (whether by ground, sea or air). If not forbidden, hazardous materials must still meet all regulatory requirements; therefore, you need to follow the packaging, labeling and marking requirements, among others, specified in the table and in other parts of the HMR. The packaging requirement would regulate how much you could ship in one package and what kind of packaging material or method should be used.

Fourth, like the packaging requirement, you need to communicate information related to the hazardous materials being shipped in accordance with the Hazardous Materials Table and other HMR provisions, through shipping documents, package markings and labels, placards and emergence response information. This is regardless of whether you regularly ship hazardous materials or not. If you deal with any materials that come marked with the diamond-shape labels or other hazardous communication markings, then you should study the hazardous materials labeling chart and understand what warnings those signs communicate to you.

Last, the HMR require carriers and others to report violations involving hazardous materials. So, for example, if UPS or Federal Express suspects that you have not complied with the HMR, then it is their duty to report their suspicion to the appropriate modal administration. (Next month’s article will discuss what you need to do once you find yourself getting an unexpected call from one of the DOT administrations regarding your shipment.)

The Hazardous Materials Regulations exist because we live in a world where more and more hazardous materials are invented, and utilized, to make our lives more comfortable. Even though hazardous materials warnings may have become a familiar fixture of the modern workplace, their message should not be taken lightly.

As the paint truck tragedy or the ValueJet accident illustrates, there are serious and deadly consequences if you do not take hazardous materials with caution. As with many other areas of the law, ignorance is no excuse. You do not have to live in constant fear, but you do have to remain informed of the hazardous materials that you work with.

About the Authors
Glenn P. Wicks, Esq. is president of The Wicks Group PLLC, a Washington, D.C., firm that provides legal and consulting services to transportation interests on regulatory and commercial matters.

Kenneth Holloway is vice president of Safety Specialists Inc., a Charlotte, N.C., training and consulting company that provides services regarding hazardous materials and dangerous goods.

For More Information
The Wicks Group provides ongoing compliance advice to major shippers and transporters of hazardous materials. The Wicks Group also advises clients on enforcement matters relating to the shipment of hazardous materials. Wicks may be reached at (202) 457.7790 or via fax at (202) 457.7799 or gpwicks@wicks-group.com.

Holloway may be reached at (704) 573.0955 or via fax at (704) 545.5130 or ken@hazmathelp.com.