With hazmat legislation likely to pass, the time is now to upgrade your programs
by Lawrence W. Bierlein
Q. What is coming from Congress on hazmat transportation?
A. After many years of effort attempting to reauthorize the Department of Transportation's (DOT) hazmat law (49 U.S. Code 5101), Congress at the time of this writing is close to passing something. Both the House and the Senate have acted, and it is likely they will work out their differences in conference. Because these hazmat changes are embedded in a much larger bill on highway construction that every official wants to see before the November elections, enactment and Presidential signature should be expected.
Industry generally did not favor any of the changes, which have been evolving since the DOT took a fresh look at its law in the wake of the ValuJet crash in 1996. It does not appear that any of the new provisions would have affected the outcome of that incident, but the occasion served as a prompt for a legislative reaction. Although 9/11 security considerations influenced this new law as well, most of the changes adopted by both sides of the legislature were prompted by the 1996 disaster.
These modifications primarily take the form of increased inspection and enforcement authority granted to the DOT and its modal agencies. The power of field inspectors to stop and examine cargo is expected to be enlarged, comparable to their historic powers to stop transportation equipment and to order that equipment out of service. While new emergency orders stopping shipments before having an opportunity to be heard would have a limited duration, more frequent DOT disruption of commerce is anticipated.
The new authority is described in a series of inspection steps.
First, the inspectors would be able to inspect questionable material in transit. Clear authority would be granted to open outer packaging, except for that packaging “immediately adjacent to” the hazardous materials contents, if the inspector had “an objective and reasonably articulable belief” that the packaging contained hazardous material. Transportation of the material could be barred if the inspector believes the package “may pose an imminent hazard.” Contemporaneous documentation of this belief would be required.
Second, the inspector could gather information from the shipper, carrier, packaging manufacturer or anyone else responsible for the cargo to ascertain the nature of the hazards of the contents.
If information-gathering is unsuccessful, “as necessary, under terms and conditions specified by the Secretary” of the DOT, the shipper, carrier, packaging supplier, or other person responsible for the package could be ordered “to have the package transported to, opened, and the contents examined and analyzed, at a facility appropriate for the conduct of such examination and analysis.” The law is expected to require the DOT to complete rulemaking to establish these procedures, terms and conditions before this new authority can be implemented.
The new law also will increase the civil penalty ceiling substantially, up to $100,000 per violation depending on the circumstances. Most cases involve multiple violations.
Criminal penalties also are expected to become more onerous, involving much longer jail terms and higher fines if a hazardous material is released (Senate bill) or if when released it does substantial harm (House bill). The DOT and the Department of Justice are both expected to get additional staff to carry out additional tasks.
With increased liability imposed by the new law, companies engaged in the shipment or carriage of hazardous materials, or the provision of packaging for that purpose, should plan now to upgrade their hazmat programs, and to staff those programs with safety professionals who have experience and authority commensurate with the higher public liability exposures involved. 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].