Q. What is the significance of the DOT's recent change to the definition of hazmat employer?
A. The August 2005 changes to the federal hazmat law in Docket No. HM-240 have been talked about for years. In the beginning of this debate, the U.S. Department of Transportation (DOT) wanted to cover not only direct employees handling hazmat, but also contractors and subcontractors. Those separate businesses, of course, are also hazmat employers, so industry argued that this change was unnecessary.
Unfortunately, when Congress passed the hazmat law last year, the drafters left in one reference where "employer" is described as anyone who employs "or uses" someone to perform a hazmat function. A change of this scope is major because it has a potential impact on hundreds of employers. It should have gone through notice-and-comment rulemaking, but the DOT chose to skip any discussion and put the change right into the regulations without comment or explanation. Unanswered questions include:
Is a freight consolidator or forwarder someone you "use" to prepare your hazmat, and if so, do you have a direct hazmat training obligation for the employees of that consolidator?
Do you have to teach this other company's employees about your security plan?
Is a motor carrier transporting your freight "used" by you, in the sense of becoming your training obligation?
What about people who come to your plant to clean the boilers and bring corrosive liquids with them?
Have you "used" them to transport hazardous materials for your benefit? What about the employees of the public warehouse where your products are stored and from which they are shipped?
If you hire someone to paint the building and they subcontract the job, are you "using" the subcontractor's employees to bring a flammable liquid to your plant, and do you have to train them on the DOT's requirements?
As of the time of this column, there is no answer to these questions from the DOT, but further action in HM-240 should be anticipated.
Q. Why is the DOT changing all hazmat " exemptions" to "special permits"?
A. Years ago, when a DOT-regulated company wanted to follow a practice that differed from the hazmat regulations, they asked for and got a special regulation, at that time called a "special permit." Because this was easier to process than general regulations, the agency began issuing the same special permit to everyone in a particular business.
The U.S. Congress did not understand that this practice was just the result of taking the easy path, and thought the DOT was letting people out of the regulations without telling anyone. Hence, in an early version of today's hazmat law, Congress insisted upon calling these documents "exemptions," as if they were waivers, and made them a notice-andcomment process.
While some earlier abuse of the administrative process may be true, these never have been waivers — they are authorizations of different requirements from those published in title 49 CFR. However, because the DOT has been forced to call them "exemptions," other federal agencies, states and foreign governments think they must be a free pass of some sort, and have not accepted them.
In the most recent amendments to the hazmat law, Congress finally recognized that these are not waivers at all and restored the name "special permit." With reversion back to the old name, however, it has been necessary for the DOT to go everywhere through the book where the term "exemption" was used, and change it to "special permit." Former "DOT-E" marks and notations on shipping papers have to be converted to "DOT-SP" marks and notations.
This work was recently completed in the final rule adopted in HM-240, and current holders of exemptions are being advised of the name change to their documents. Sufficient grandfather rights are included to make disruption of transportation of these items unlikely.
Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at 202.775.5560, [email protected]