PHMSA Issues Final Rule HM-233F, Adoption of Special Permits
February 1, 2016 •
On Jan. 21, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published in the Federal Register its final rule for Adoption of Special Permits, HM-233F. Of note, provisions for special permits that ACA had urged the agency to include in the final rule, were included.
The Final Rule becomes effective Feb. 22, 2016.
The Moving Ahead for Progress in the 21st Century Act (MAP-21), which reauthorized the federal hazmat statute, required PHMSA to review all Special Permits that had been in existence for more than 10 years and determine whether they were appropriate for incorporation into the Hazardous Materials Regulations (HMR). In fact, PHMSA actually reviewed all Special Permits regardless of age and proposed to incorporate almost 100 into the regulations.
Last spring, ACA submitted comments to PHMSA on the agency’s proposal for HM-233F and urged PHMSA to consider incorporating the Provisions of Special Permit 11624 (SP11624) into the HMR. SP 11624 authorizes transportation in commerce of certain waste Class 3 paint and paint related material (UN1263; PG II and PG III) contained in metal or plastic pails further packed in non-specification bulk packagings such as cubic yard boxes, plastic rigid-wall bulk containers, dump trailers, and roll-off containers. While PHMSA deemed SP11624 “not suitable for proposed adoption” into the HMR, ACA maintained that this special permit is instrumental for transporting paint that is deposited at post-consumer paint collection sites under ACA’s PaintCare® program. Leftover consumer paint brought to PaintCare® collection sites by consumers in their own vehicles is then transported to facilities for sorting, recycling, energy recovery, and/or disposal. Approximately 30 percent of the materials collected at these sites are regulated hazardous materials and must be transported under the requirements of SP11624.
Many ACA members transport raw materials, finished products, and samples under special permits. Special permits allow holders to transport dangerous goods in a manner that achieves an equivalent level of safety as required by the HMR while permitting variations from the existing regulatory requirements. In the coatings industry, special permits are used in emergency situations, to permit the use of new technologies and innovations in transportation strategies, and to improve safety and efficiencies in logistics. ACA believes that SP11624 meets the criteria for incorporation into the HMR as set forth by MAP-21 and strongly recommended that PHMSA re-examine this special permit.
As a result of ACA’s comments and efforts, in the final HM-233F, SP 11624 and three related packaging SPs (i.e., SP 13052, SP 14712, and 15235) are adopted and incorporated into the HMR as new § 172.102(c)(3), Special Provision B131.
Special Provision B131, follows ACA’s suggested language for inclusion and states the following:
When transported by highway, rail, or cargo vessel, waste Paint and Paint related material (UN1263; PG II and PG III), when in plastic or metal inner packagings of not more than 26.5 L (7 gallons), are excepted from the marking requirements in § 172.301(a) and (c) and the labeling requirements in § 172.400(a), when further packed in the following specification and nonspecification bulk outer packagings and under the following conditions:
a. Primary receptacles must conform to the general packaging requirements of subpart B of part 173 of this subchapter and may not leak. If they do leak, they must be overpacked in packagings conforming to the specification requirements of part 178 of this subchapter or in salvage packagings conforming to the requirements in § 173.12 of this subchapter.
b. Primary receptacles must be further packed in non-specification bulk outer packagings such as cubic yard boxes, plastic rigid-wall bulk containers, dump trailers, and roll-off containers. Bulk outer packagings must be liquid tight through design or by the use of lining materials.
c. Primary receptacles may also be further packed in specification bulk outer packagings. Authorized specification bulk outer packagings are UN11G fiberboard intermediate bulk containers (IBC) and UN13H4 woven plastic, coated and with liner flexible intermediate bulk containers (FIBCs) meeting the Packing Group II performance level and lined with a plastic liner of at least 6 mil thickness.
d. All inner packagings placed inside bulk outer packagings must be blocked and braced to prevent movement during transportation that could cause the container to open or fall over. Specification IBCs and FIBCs are to be secured to a pallet.
Inclusion of this special provision is a decisive victory for ACA and PaintCare®. PaintCare will soon have post-consumer paint collection programs implemented in eight states and the District of Columbia, where operational, PaintCare’s transporters are averaging approximately 15,000 shipments annually. The number of shipments will increase exponentially every single year as new state programs are implemented.
In addition, ACA had encouraged PHMSA to review the some of its regulatory text in order to ensure a holistic approach to transport requirements, and particularly urged the agency to expand its proposal for SP 383 from being added to Coatings Solution, UN1139 PG II and Paint, UN1263 PG II —which would allow for viscous flammable liquids that meet certain criteria to be reclassified as a PG III — to be applied to a broader range of entries than just Coatings Solutions and Paint, including Resin Solution, UN1866 PG II, Printing ink UN1210 PG II and Adhesives, UN1133 PG II. In the final HM-233F table, PHMSA effected these changes.
PHMSA’s Special Permits program was created to allow companies to transport and package hazardous materials in domestic transport in a manner not specifically authorized by the HMR. Special Permits authorize, for example, the movement of a new substance or allow the use of a new or unique packaging. Approximately 4,500 special permits are maintained in PHMSAs current database. Many paint companies require Special Permits in order to ship raw materials, finished products or waste materials. ACA and its Transportation and Distribution Committee have spent considerable energy and resources responding to the changing policies and procedures of the Special Permits program over the last several years.
Contact ACA’s Heidi McAuliffe for more information.