Hazmat Transport Regulatory Update

Background

The U.S. Department of Transportation (DOT) overseas several different agencies, including the Pipeline and Hazardous Materials Safety Administration (PHMSA). PHMSA is responsible for promulgating regulations to ensure safety and security of the transportation of hazardous materials, including those paints and coatings classified as hazmat. PHMSA has two safety programs: the Office of Pipeline Safety (OPS) and the Office of Hazardous Materials Safety (OHMS). OHMS overseas the safe transport of hazmat by air, rail, highway, and vessel in the U.S. and its territories. As such, OHMS establishes policy, standards, and regulations for the transportation of hazmat.

ACA directs policy in matters regarding the safe, secure, and economic transportation of industry products and the raw materials used in them. ACA also helps establish an industry position in matters of proposed legislation and regulation in the United States and in international forums on issues pertaining to the transportation of hazardous materials.

ACA Action

Used Drum Management & Reconditioning

In August 2023, U.S. EPA issued an advanced notice of proposed rulemaking (ANPRM) on used drum management and reconditioning. Specifically, EPA is soliciting information and requesting comments to assist in the potential development of regulatory and/or non-regulatory options that would ensure the proper management of used industrial containers that held hazardous chemicals or hazardous waste, up to and including the drum reconditioning process. Options could include revising RCRA regulations or other non-regulatory options. It’s important to note that this ANPRM does not propose any regulatory requirements or change any existing regulatory requirements.

EPA plans to use this ANPRM as a preliminary way to explore the regulatory and/or non-regulatory options for dealing with the issues surrounding the management of used containers, such as metal or plastic drums, across their lifecycle. Management issues across the lifecycle of used containers can occur at industrial facilities, with hazardous waste generators, and with generators of used containers, as well as with transporters and receiving facilities (i.e., drum reconditioners). EPA solicited input on the following (among others):

• Eliminating the RCRA “empty” exemption at 40 CFR 261.7 for hazardous waste residues in containers.
• Establishing more stringent requirements, such as rinsing, for all containers to qualify as “RCRA empty.”
• Imposing structural integrity requirements for used containers before they are shipped offsite.
• Expanding labeling, record-keeping, and certification requirements for used container generators.
• Establishing requirements for drum reconditioners to qualify for Subtitle C permit exemptions, such as drum screening procedures, separate storage areas for non-RCRA “empty” containers, rejected shipment procedures, discrepancy reports, and container management plans.
• Requiring a Subtitle C permit or variance for drum reconditioners.
• Enhancing requirements for characterizing, managing, and disposing rinsate from drums that have held hazardous waste.
• Encouraging the development and implementation of industry-coordinated standard operating procedures for used container generators, transporters, and reconditioners.

ACA submitted comments in response to U.S. EPA’s ANPRM in November 2023. ACA also signed on to an industry coalition letter. In its comments, ACA noted that the existing regulatory framework for the management of used industrial containers works. ACA also explained its rationale for opposing certain options EPA suggested in the ANPRM. Notably, ACA opposes the elimination of the empty container exemption and the addition of pretreatment requirements (e.g., triple rinsing). ACA urged EPA to maintain the regulatory structure currently in place for used drum management and reconditioning, and to develop non-regulatory guidance to promote compliance with the existing regulations. This guidance could be developed in collaboration with EPA, industry, and other interested stakeholders to ensure it captures the used industrial container management issues identified in the ANPRM. ACA expects regulatory action on this issue in 2024.

Frequency Asked Questions (FAQs) Rulemaking

In early-2022, PHMSA announced an initiative to convert historical letters of interpretation (LOI) applicable to the HMR that have been issued to specific stakeholders into broadly applicable frequently asked questions (FAQs). By creating a repository of FAQs, PHMSA is seeking to eliminate the need for recurring requests for common letters of interpretation. The FAQs are intended to clarify, explain, and promote better understanding of the HMR and help the regulated community understand how to comply with the regulations.

In March 2024, PHMSA published a third set of FAQs that address hazmat training requirements found in Subpart H of Part 172 of the HMR. The first set of FAQs are specific to the applicability of the HMR, while the second set of FAQs pertain to incident reporting requirements. Although there is no major impact, the FAQs contain helpful guidance. Future topics may include FAQs pertaining to batteries, classification, hazard communication, hazardous substances, hazardous wastes, modal-specific requirements, and/or packaging. ACA will continue to update the Transport Committee on this effort.

Adoption of Miscellaneous Petitions

In March 2024, PHMSA issued a final rule to adopt miscellaneous petitions and update various regulatory requirements (HM-219D). This rulemaking responds to 18 petitions for rulemaking submitted by the regulated community between May 2018 and October 2020 that requested PHMSA address a variety of provisions, including packaging, hazard communication, and the incorporation by reference of certain documents. Notably, PHMSA officially revised the HMR to (among others):

• Provide greater flexibility and accuracy in hazard communication by allowing additional descriptions for certain gas mixtures.
• Allow for appropriate flexibility of packaging options for the transportation of compressed natural gas in cylinders.
• Streamline the approval application process for the repair of specific DOT specification cylinders.
• Provide greater clarity on the filling requirements for certain cylinders used to transport hydrogen and hydrogen mixtures.
• Require a specific marking on cylinders to indicate compliance with certain HMR provisions.
• Modify the definition of “liquid” to include the test for determining fluidity (penetrometer test) prescribed in the agreement concerning the International Carriage of Dangerous Goods by Road (ADR).
• Incorporate by reference various Compressed Gas Association (CGA) publications concerning gas cylinders.

Although there is no major impact to the coatings industry, it is positive to see PHMSA responding to petitions and updating regulatory requirements to improve hazmat transport standards.

Harmonization with International Standards

In May 2023, PHMSA issued a notice of proposed rulemaking to harmonize the federal Hazardous Materials Regulations (HMR) with international standards. PHMSA proposed to amend certain sections of the HRM to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements.

ACA submitted brief comments in support of the following proposals:

• Amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, and small aircraft max quantity limits. These HMT changes affect batteries, nitrocellulose, water-reactive liquids, and corrosive liquids & solids.
• Addition of a new entry to the HMT for “UN3550 Cobalt dihydroxide powder, containing not less than 10% respirable particles” and its corresponding packaging provisions.

ACA expects a final rule to be published in mid-2024.

Hazmat Registration & Fee Assessment Program

In 2023, ACA signed on to a coalition letter that responded to PHMSA’s advance notice of proposed rulemaking (ANPRM) on potential adjustments to the statutorily mandated hazmat registration and fee assessment program. PHMSA sought comments and input on questions related to the scope of the registration and fee assessment program. The coalition comments included the following:

• Support for hazmat registration fee caps;
• Opposition to expanding the pool of persons subject to registration for the purpose of generating more revenue for the emergency preparedness grant programs; and
• Endorsement of the current two-tier fee scale based on the level of commercial activity assigned to business entities by the SBA that PHMSA has used since 2000-2001.

In late-2023, PHMSA held a public meeting to solicit additional input on potential adjustments to the statutorily mandated hazmat registration and fee assessment program. PHMSA sought more feedback on the most appropriate and equitable manner to adjust the registration and fee assessment program. The coalition reiterated its comments at the public meeting. Further action on this effort is still pending. ACA will update the Transport Committee on any developments to this program.

Electronic Hazard Communication Alternatives

PHMSA issued a request for information (RFI) regarding electronic hazard communication alternatives. According to the notice, PHMSA sought input on the potential use of electronic communication as an alternative to current physical documentation requirements for hazard communication. The agency is considering revisions to the HMR to authorize a performance-based electronic communication alternative to the existing physical, paper-based hazard communication requirements.

ACA submitted comments in general support of this initiative. Notably, ACA supports PHMSA’s effort to provide a viable alternative to hard copies of shipping papers, while still maintaining an equivalent level of safety and providing shippers, carriers, enforcement personnel, and emergency responders the necessary information about the hazardous materials being transported. Widely adopted technologies could supplement (or replace) the existing paper-based hazard communication system. They could also offer opportunities for improved emergency response and oversight, as well as increased efficiency in the operations of transportation networks. An electronic alternative would also provide for a more efficient and effective means to exchange information between shippers and transporters, especially in multi-modal operations.

With that said, ACA urged PHMSA to consider implementing a consistent alternative system between various shippers/transporters to ensure that enforcement personnel and emergency responders would only need to understand one format. ACA also believes that hard copy shipping documents should continue to be allowed for transitional ease. Although this is just an RFI, ACA is generally supportive of this initiative and will continue to monitor any action that stems from it.

ACA Staff

Rhett Cash
Counsel, Government Affairs