Shippers slam hazmat rule revision

By James A. Cooke -- Logistics Management, 5/1/2005

WASHINGTON—Many shippers are unhappy with the latest revision to federal regulations governing transportation of hazardous materials.

The U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) last month issued a revised version of HM-223, which addresses regulatory jurisdiction over hazmat transportation. The revision becomes effective June 1.

The original rule, issued in October 2003, included a provision that removed oversight of loading, unloading, and storage of hazardous materials—activities labeled as "incidental" to transportation—from DOT's jurisdiction. Some shippers disagreed with that and other provisions and requested an administrative review of the regulation. Shortly after those petitions were filed, HM-223 was challenged in federal court by a coalition of 10 trade associations.

The plaintiffs argued that HM-223 would open the door to regulation of loading, unloading, and storage of hazardous materials by state and local governments. They also challenged the elimination of federal oversight of temporary storage of containers involved in transloading. After the lawsuit was filed, PHMSA agreed to conduct an administrative review, and the appeals court put the case on hold while PHMSA reconsidered its original rule.

As a result of its review, PHMSA made just one major change to the original version, said Susan Gorsky, acting director of the Office of Hazardous Materials Standards. In response to shippers' concerns, she said, the agency will retain its jurisdiction over temporary storage of containers involved in transloading.

Gorsky said the federal government isn't giving up its jurisdiction over hazmat transportation, with the exception of rail tank-car unloading. Because unloading can occur weeks after delivery, DOT doesn't classify that activity as a transportation function. Instead, rules issued by the Occupational Safety and Health Administration (OSHA) will apply to railcar unloading.

The plaintiffs say the revision does not go far enough. "The latest revised final rule does not meet the concerns of the American Chemistry Council or of the other shipper members of the coalition," said Kate B. McGloon of the American Chemistry Council. "It maintains that tank-car unloading, for example, is no longer regulated by DOT. This would lead to either no regulation at all, or conflicting—in some cases impossibly burdensome—local regulations."

Now that the federal agency has issued its revision, legal proceedings are expected to resume this summer.