Hazmat: DOT goes public with its expanded inspection authority

Q. What is the reason for the public meetings on the DOT's new inspection authority?

A. On January 25, 2006, the U.S. Department of Transportation's Pipeline & Hazardous Materials Safety Administration (PHMSA) published notice of three public meetings to discuss the agency's implementation of expanded inspection authority (Docket No. PHMSA-05-22356). These sessions are a preliminary step in the development of a DOT rulemaking describing new inspection procedures as part of their hazmat enforcement program.

The expansion occurred last August when Congress passed amendments to the DOT's basic hazmat law. Past experience had called into question the scope of the proper activity of a DOT inspector with respect to hazmat packages ( including bulk packages like tank cars and tank trucks), so this legislation was the government's attempt to clarify that authority. In clarifying, they also wanted to broaden their authority.

Of particular interest to industry was the DOT's desire for power to have inspectors stop, question and in some circumstances open packages suspected of containing hazmat. With considerable interaction from affected industries, the amendments Congress finally passed gave the DOT some of this authority but under relatively tight limitations. These limitations and how they are expressed in new DOT procedures are the topic of the public meetings and future rulemaking.

Inherent in any inspection of the type described here is delay in moving the freight, and perhaps the vehicle. In addition to potentially costly delays, people are concerned with the new power for the DOT to order that a package be opened and perhaps to have the contents tested or analyzed. People worry about the effect of opening their package on the quality of the contents, and they also are concerned about injuries that might occur if a DOT inspector opens a box containing, for example, infectious substances or poison. Carriers are concerned if DOT inspectors ask their employees to take part in this process, which often will be carried out on the carrier's premises.

Much of this new authority hinges on the inspector's belief that a package contains hazardous material and some sense of the hazard it may pose while in transportation. How that belief must be described and contemporaneously documented by an inspector is an issue.

If the package is to be opened, where it is done and by whom is an issue. After it is opened, industry is concerned with the manner in which it may be re-closed, and who will be responsible for subsequent damages if that closing is not done properly. With UN certified packages, where the closure is part of the filler's certification, it is unclear who would re-close a package and what training that person may have to perform that task.

The DOT also was given new power to issue emergency orders to take hazmat packages "out of service." This can mean stopping one package, or all in a shipment, or perhaps all similar packages in transportation. The revised statute also uses the word "recall" without clarification of the term that can only come through rulemaking.

Emergency orders would take effect without an opportunity to be heard, and only a limited chance after the fact to seek review of the agency's decision. How these decisions are made, what the review procedures are, and how and who decides when a problem has been resolved are additional issues likely to come up during the public meetings.

Any hazmat shipper and carrier could be affected by these inspections, and the basic rules under which they will be carried out. Even if you cannot attend or participate in the public meetings, I recommend that you follow the rulemaking and offer comments to the DOT on the proposals directly, or through your trade association representatives.

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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