Q: What is the significance of the DOT's hazmat reorganization?
Industry generally perceives this as a positive step because former RSPA administrators rarely paid attention to hazmat, and because it is better to have a stand-alone administration rather than absorbing the hazmat functions into a department that is otherwise charged with policy responsibilities.
The venture means appointment of a new administrator, deputy administrator and chief counsel. In addition, there have been changes at the hazmat operations level.
My hope is that new PHMSA people, with a fresh look, will reevaluate the role of the DOT in hazmat transportation safety and security. I have observed that people in other branches of government tend to forget what the DOT does or is authorized to do, and so sense a regulatory vacuum into which they feel compelled to leap.
A recent example is action by the District of Columbia which claims the DOT is not doing anything to protect Congress and the President from hazmat transportation and potential terrorist events. This perception of the DOT as not being involved is enhanced by the agency's own rulemaking, such as HM-223, in which the DOT voluntarily ceded a large percentage of its responsibility for transportation safety and security to anyone else willing to attempt the job.
The DOT also tends to play second fiddle to the Department of Homeland Security which, like many local governments, seems to ignore the comprehensive complexity of the DOT hazmat regulatory system and the talents of the people managing the DOT program.
We need the new people at the DOT to be proud of what they do, to understand the scope of their rules and their authority to regulate, and to want to carry the ball to the exclusion of towns, states and federal agencies who seem to sense a DOT disinterest in covering the field.
In addition to reviving what some perceive to be a relatively quiet program, new PHMSA people would do well to:
- Look at the abundance of prior studies and findings on hazmat transportation regulation to see whether any recommendations should be implemented.
- Recognize that the National Transportation Safety Board does not have regulatory responsibilities, plays politics like everyone else, makes suggestions without the need for consideration of feasibility, and often not only can but should be ignored.
- Recognize that industry people using the DOT rules on a daily basis are agency partners — their job is to protect their companies from incidents. Shippers are the agency's closest allies, and the DOT should take every opportunity to enhance their importance within their businesses.
- Correlate agency enforcement programs with incidents. Inspections that check for detailed compliance, but do not relate to demonstrated safety or security in transportation, do everyone a disservice.
- The DOT should stop maligning its own incident data; make it better and rely on it.
Enforcement programs should be consistent within and across all modes. The size of the penalty should not depend upon who caught you or where.
- Speed up the process. The agency may have to do less to accomplish more.
- Understand that carriers are not appropriate inspectors to police shipper compliance; that is a government job.
Why not make your own list of suggestions and transmit it to the PHMSA administrator?
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].