Hazmat: You can't outsource your responsibility

Can we contract out for someone to select and arrange for our hazmat packaging?

If you want to turn to a third party, recognize that regardless of what your contract may say, if you are the shipper the U.S. Department of Transportation (DOT) is going to hold you responsible. In other words, you can arrange for someone else to do the work, but the DOT will go after your nickel if there is an error.

Indemnification clauses help, but it also is important to recognize that selecting appropriate hazmat packaging is not simply a purchasing job.

As I wrote in a previous column ("The buck stops with you," November 2005), barring actual knowledge to the contrary, you may assume that the performance capability of the packaging is reflected accurately by the UN mark applied by the maker. You do not have to test the unit yourself, or otherwise verify what the maker has claimed; see 49 CFR 173.22(a)(3)(i).

A shipper's obligations, however, extend far beyond just ordering UNmarked packaging. While many packaging types are authorized for that product in Part 173 of the DOT regulations, some are going to be inappropriate.

Current DOT enforcement initiatives make it clear that shippers must improve compliance with the general provisions of Sections 173.24 and 173.24a for nonbulk packagings and 173.24b for IBCs. These place the burden on the shipper (who is presumed to be aware of the properties of the hazmat being shipped) to make sure the packaging has been designed, constructed, maintained, filled, its contents so limited, and closed, so that there will be no identifiable (without the use of instruments) leakage of hazmat to the environment.

This decision must take into account the mode(s) of transportation that will be used by the shipper, particularly with respect to impacts, temperature, humidity, pressure, shocks, loadings, and vibration the shipper can reasonably anticipate will be encountered by the filled package under normal conditions of transportation.

Also, as noted in Sec. 173.24(e), "Even though certain packagings are specified [in the regulations], it is, nevertheless, the responsibility of the person offering a hazardous material for transportation to ensure that such packagings are compatible with their lading. This particularly applies to corrosivity, permeability, softening, premature aging and embrittlement." The product may not eat the packaging, or in combination with the packaging, gaskets, closures, etc., evolve dangerous quantities of gas or heat.

Two hazmat packaging items commonly cited by the DOT these days are: (1) improper closure, and (2) inadequate assurance of the capability of any package offered for transportation by air to withstand the rigors of that mode.

The maker of UN packaging is obligated to provide the filler with closure instructions. The filler, in turn, is obligated to follow those instructions; see Sec. 173.24(f)(2). If you do not maintain a copy of those instructions and include them in your hazmat employee function-specific training for people closing your packages, it will be hard to stop a DOT civil penalty claiming noncompliance with this section.

Air transport receives most intense scrutiny by DOT. Here, Sec. 173.27 and the corresponding general provisions of ICAO/IATA have to be met, particularly with respect to capability of liquid packagings to withstand a 95 kPa pressure differential test, and to assure closures are secure regardless of vibration, temperature, and pressure changes.

If you contract out these services, make sure the company (who will be perceived by the DOT as your agent) knows the detailed physical properties of your products, the modes of transportation you intend to use, and the kind of handling (e.g., palletizing and unpalletizing) shipments are likely to encounter.

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