Hazmat: Desperately seeking closure

Please explain the regulatory issue with hazmat packaging closure instructions.

This subject is really messy, and I do not hold out hope for clarification soon. The key provisions are found in 49 CFR Sec. 178.2(c)(1) for makers of hazmat packaging, and Sec. 173.24(f) for fillers of packaging under the U.S. Department of Transportation's regulations.

First, some background. The DOT realized through its incident reporting system that a large number of reported incidents involve poor closing of the packaging. To date, the report forms have not been sufficiently detailed to do more than confirm there is a problem. New, more detailed reporting forms will be required as of January 1, 2005, but these still may not answer the fundamental questions of whether the closure design is flawed, the packaging was not closed well enough at the time of filling, or with time and vibration the closure has loosened.

U.S. hazmat regulations in Sec. 178.2 tell the packaging maker to give written notification to each person to whom the packaging is transferred, of the “type(s) and dimensions of the closures, including gaskets and any components needed to ensure the packaging is capable of successfully passing the applicable performance tests” of the hazmat regulations. Added words are necessary if the packaging is appropriate for air transport.

Sec. 173.24, in turn, tells the filler that each closure must conform to the requirements of the packaging specification, “and must be closed in accordance with information, as applicable, provided by the manufacturer's notification required by Sec. 178.2.”

Now for the reality. A packaging manufacturer has every incentive to make the closure instructions as detailed and complicated as possible, so liability is avoided for leakers. Hence, most instructions are too detailed to be practical.

The packaging manufacturer must keep a copy of the notification provided, but the DOT also has said the manufacturer needs to be able to prove that the instructions were received, not just sent. As a result, many manufacturers print the detailed closure instructions on their billing statements which, of course, go to Accounts Payable and never are seen by the people who close the packaging.

Packaging fillers, on the other hand, are unlikely to receive just one set of instructions from one packaging manufacturer. More likely they have dozens of different packaging suppliers and all kinds of closures. While, as a legal matter, perhaps one can say these detailed instructions should be part of each hazmat employee's function-specific training, I have not seen this done with any measure of success. Instructions are paper leading to liability, not effective communication.

Another problem with closure instructions is that they do not recognize local effects. The amount of torque to be applied, as an example, may vary with the contents, the temperature, the local humidity, and whether the closure is wet or dry. These factors are not within the knowledge of the packaging maker, who produces a standard instruction, and yet the regulations also make it difficult for the filler to implement variations on the packaging without government approval. The DOT says the manufacturer and the filler need a closure collaborative relationship on this issue, “to ensure that the closure methods used will provide an effective seal taking into account the various conditions involved during transport.” (Final Rule, Docket No. HM-215E, July 31, 2003).

Although the effectiveness of these DOT requirements remains in doubt, every packaging supplier must be ready to prove that instructions were prepared and transmitted, and every filler of such packaging must be able to prove such instructions were received, kept and followed in the preparation of hazmat packages for transportation. LT

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].

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