[ID] => 9821
[post_author] => 34
[post_date] => 2018-07-11 09:10:39
[post_date_gmt] => 2018-07-11 08:10:39
[post_content] => Readers who rely on HCB for its regular coverage of regulatory changes in the world of dangerous goods will no doubt have noticed a lack of action in the US over the past 18 months. It is clear that the current US administration is extremely reluctant to impose what it sees as increased regulatory burdens on industry and that, therefore, all regulatory agencies are under pressure to avoid adding new provisions.
It was useful, then, to have the opportunity afforded by the annual forum of the Council on Safe Transportation of Hazardous Articles (COSTHA) to listen to and speak to officials from the Pipeline and Hazardous Materials Safety Administration (PHMSA) and other regulatory bodies to get an update on how they are approaching their work in the current environment.
The COSTHA forum took place in Weston, Florida this past 22 to 25 April under the theme of ‘Overcoming global challenges’. The event featured its usual mix of conference sessions, training courses, roundtable discussions and networking opportunities that this year brought a record crowd of more than 320 hazmat professionals – including at least 125 first-timers, a testament to COSTHA’s efforts to reach out to the industry at large.
Those who arrived early had a choice of training courses to attend, covering such topics as lithium battery transport, shipping hazmat via the US Postal Service, recordkeeping under the Toxic Substances Control Act, Canada’s Transport of Dangerous Goods Regulations, and advanced air transport training. With two networking events ahead of the conference itself, delegates had had plenty of time to get to know each other, renew acquaintances and forge new contacts before they sat town first thing on Tuesday to hear from the regulators themselves.
NEW FACES AT PHMSA
The honour of opening proceedings fell to Shane Kelley, acting director of standards and rulemaking at PHMSA. He brought the newbies onside early by acknowledging that the US Hazardous Materials Regulations (HMR) are extensive and confusing. “You never know it all,” he admitted. “But there is always something new to learn – that’s what makes it exciting.”
It is not only among the regulated community that there are new faces; Shane introduced some new personnel at the top at PHMSA itself. Howard ‘Skip’ Elliott had been sworn in as the new administrator on 30 October 2017; he was previously vice-president of safety, health, enforcement and security at CSX and has more than 40 years’ experience in the railfreight sector. Drue Pearce was sworn in as deputy administrator in August 2017 having served as senior advisor to the US Secretary of the Interior; she has an extensive background in federal transportation policy and pipeline safety, Shane said. And just before the COSTHA event PHMSA acquired a new chief counsel, with Paul Roberti being sworn in on 27 March; he was previously executive director at Ernst & Young and has served two terms on the US Department of Energy’s Electricity Advisory Committee.
PHMSA’s parent agency, the US Department of Transportation (DOT) has developed a new Strategic Plan for the 2018 to 2022 period, its key priorities being safety, infrastructure, innovation and accountability – aspects that are of crucial relevance to PHMSA, whose mission is based on those priorities. This translates, Shane said, into a concise message: “We are here to serve you.”
Innovation is an important element: not just innovation within DOT but among the wider regulated industry. According to Shane, 90 per cent of PHMSA’s work deals with innovations in packaging, testing, product development and other new ideas coming from industry. “We cannot limit innovation by having regulations that are too prescriptive,” he stressed. As a result, PHMSA is “not going to upset the apple-cart” by making major changes to the HMR.
A corollary of this approach, Shane explained, is that it is impossible to be a good regulator if you don’t know what you are regulating; government agencies need to be able to talk to industry. This is something of a reversal from the position of a few years back, when PHMSA had been accused by some in government of being “too cosy” with industry, a view that many hazmat professionals regarded with derision.
INSIDE AND OUT
However, that is not to say that there is nothing going on. Since the new administration took office in January 2017, a number of Executive Orders have been issued focusing on regulatory reform. For a PHMSA official, Shane explained, that can be seen as either daunting or exciting. Overall, he said, it is a “great opportunity to ensure that what we do as regulators is cost-effective and promotes the safety objective”. Putting it more bluntly, he explained that this new focus “makes us realise the weight of the pen we wield”.
DOT has now put in place a Regulatory Reform Task Force (RRTF) to oversee both new and existing rulemakings. This is, Shane said, challenging PHMSA’s assumptions about its regulatory activities.
RRTF’s work is guided by three principles: reducing the regulatory burden without compromising safety; streamlining permitting; and enabling innovation. PHMSA now meets every month with the RRTF Working Group to develop recommendations for deregulatory action; those recommendations are discussed by RRTF’s Leadership Council, which submits final recommendations to the Secretary of Transportation.
The point of the HMR is not just to ensure safe movement of dangerous goods within the US; it also has to ensure the smooth movement of regulated material in international transport. Lindsey Constantino, international standards specialist at PHMSA, reported on recent activity in this regard. Despite initial suspicion on the part of the new US administration, HM-215N, the biennial update to maintain harmonisation with international regulations, came into effect at the start of 2017, aligning HMR with international air and maritime rules and incorporating many of the changes included in the 20th revised edition of the UN Model Regulations.
More specifically, PHMSA has been working with its counterparts at Transport Canada to look at the volume of dangerous goods passing through border crossing points and the number of incidents happening at those locations. The aim is to establish baseline data for road, rail and marine movements. A specific study is being undertaken at the crossing between Pembina, North Dakota and Emerson, Manitoba to identify dangerous goods activity in the area and to understand the “local dangerous goods ecosystem”. PHMSA has also been looking at activity in the Bakken shale oil field, assessing how shale oil production affects the rate of dangerous goods incidents.
A number of ongoing projects are under way involving PHMSA and Transport Canada, including reciprocity in terms of one-time movement approvals (OTMAs) for rail tanks, certificates of equivalency issued as competent authority approvals, and the requalification of Canadian gas cylinders.
Lindsey also reported on the ninth US-China Transportation Forum and its work in terms of fostering cooperation in areas such as transport safety, innovation, infrastructure planning and disaster preparedness and response.
NORTH OF THE BORDER
While PHMSA is having to deal with a new approach to the business of regulation, Transport Canada has its own set of priorities, many of which have become apparent since the Lac-Mégantic rail disaster in Quebec in 2013. Julie Prescott, technical consultant at COSTHA and a specialist in Canadian affairs, explained that the country’s Transportation of Dangerous Goods (TDG) programme is now based very much on identifying and managing risk.
Julie explained the role of two bodies. The TDG General Policy Advisory Council (GPAC), which involves collaboration between regulators, industry, emergency agencies, local authorities and labour representatives, provides advice and recommendations to Transport Canada designed to strengthen standards and improve safety. It has done work on classification, emergency response and means of containment. The Multi-Association Committee on TDG, which is sponsored by the chemical industry, also provides recommendations to Transport Canada. Both groups get involved early in the rulemaking process, providing input prior to the publication of proposals in Part I of Canada Gazette. Julie herself is the COSTHA delegate to both GPAC and MACTDG.
Somewhat unusually, regulatory activity in Canada is currently outstripping that in the US by quite some margin, although some of that reflects the need for Canada to catch up after several years of little activity. Julie therefore had plenty to report in terms of new regulations.
The marine provisions in the TDG Regulations have been updated; the amendments were published in Part II of Canada Gazette on 24 November 2017 with a six-month transitional period. The update was necessary because, not having been revised since 2001, many references and usages of terminology had become out of date. There is also a clarification of the ‘short-run ferry’ exemption and new provisions to allow the transport of gasoline and propane in highway tanks on passenger-carrying vessels operating between two points no more than 5 km apart.
Schedule XV of the Contraventions Regulations have been updated, in collaboration with the Department of Justice. In particular, new contraventions relating to security issues have been introduced, while the schedule of fines has been enhanced. The update was published in Part II of Canada Gazette in February 2018.
Transport Canada’s website now has new ‘frequently asked questions’ (FAQs) relating to the classification of methanol. While these do not represent official provisions, they effectively set policy by explaining to industry how to classify methanol and products and mixtures containing methanol. This is helpful, since the subsidiary hazard 6.1 assigned to methanol reflects human experience rather than test data and cannot therefore be removed on the basis of test results.
Other FAQs deal with the use of US DOT special permits in cross-border transport; such special permits may be used until the first destination in Canada, subject to certain conditions.
Julie also updated the audience on the revision of the TP 14877 standard on containers for the transport of dangerous goods by rail. This update includes revised technical requirements for tank cars, to reflect with the new TC 117 tank car specification. It also aligns with the details in the Dangerous Goods List in the 19th revised edition of the UN Model Regulations and provides greater harmonisation with US provisions. The standard will come into force when the amending regulations are published in Part II of Canada Gazette; it is currently envisaged that publication in Part I will take place in the second half of 2018 with Part II publication following in fall 2019. Until then, the 2013 edition of the standard remains in force.
At the time of the COSTHA forum, the Canadian General Standards Board had released a first draft of the new CGSV-43.145 standard, Design, manufacture and use of large packagings for the transportation of dangerous goods, Classes 3, 4, 5, 6.1, and 9. This sets out requirements for the design, manufacture and marking of UN-standardised large packagings, a new concept in the Canadian regulations. A comment period was open until early July.
WHO ARE YOU?
Transport Canada is also involved in a major project to establish a TDG Client Identification Database (CID), after criticism that the agency lacks knowledge on who is doing what in terms of moving dangerous goods in Canada. The issue has been identified as being urgent if the public is to be effectively protected.
The CID will require all businesses involved in the transport of dangerous goods to register and provide information on their activities; this will allow Transport Canada to better target its outreach and awareness activities, improve its data gathering capabilities and strengthen risk-based oversight. The registration requirement will apply to all companies that handle, offer for transport, transport or import dangerous goods into Canada, unless they are currently exempted under sections 1.15 to 1.50 of the TDG Regulations.
Development of the TDG CID is following a multi-phased approach; the first phase, involving the development of the necessary policy, was due for completion by June 2018. This will be followed by the development of the necessary legislation and regulations, with completion targeted for December 2019. Finally, the development of the registration platform and launch of the system should be ready for roll-out in March 2021.
Another significant job is the improvement of the training provisions in Part 6 of the TDG Regulations. This project aims to increase compliance and improve public safety by ensuring that those subject to the Regulations have the knowledge and skills to perform their jobs. This follows the approach taken by the International Civil Aviation Organisation (ICAO), with a move from ‘adequately trained’ to ‘competent person’. The revision also aims to clarify the regulatory requirements.
Online public comments were open until the end of 2017 and Transport Canada is now working on the details. Julie said that she expects publication of the revised text in Part I of Canada Gazette for public consultation in the spring or summer of 2019. A CGSB standard will also be developed to sit alongside. GPAC is helping to design the necessary job-specific competency-based training and assessment (CBTA) standard, as well as an online general awareness training module.
BACK TO REALITY
Julie had already mentioned special permits and Ryan Pacquet, PHMSA’s director of the Approvals and Permits Division, was on hand to provide an update on the process. He gave the usual data sets explaining how many applications for approvals and special permits his office has to deal with, and how long applicants can expect to wait. Most applications are dealt with in less than 91 days but those that require an in-depth fitness review or external assessment will take longer, he explained.
DOT has been making an effort to streamline the process and the new Permits and Approvals Processing System Portal should help. The Portal automates routine functions and can also identify shortcomings in applications, alerting the applicant to any necessary changes. It also allows the applicant to get greater visibility on the progress of the application through the system.
PHMSA has in recent years been reviewing existing special permits, particularly those with long-standing or wide-ranging applicability, and during 2016 incorporated nearly 100 special permits into HMR under the HM-233F rulemaking. This affected some 850 ‘grantees’ who will no longer be required to re-apply for those special permits at each renewal point. Another review of existing special permits will begin later this year, Ryan said.
Many of those in the audience were interested in what Ryan had to say, not least because they use the special permits system. Furthermore, he has an engaging speaking style that helps keep the audience’s interest in what could otherwise be a rather dry topic. Much the same could be said of Robert Burns from PHMSA’s Atlanta regional office, who spoke about how the Administration is dealing with its ‘customers’ in industry on the ground.
Robert explained the current development of the Voluntary Compliance System, which aims to foster cooperation between industry and the regulatory and enforcement agencies in order to reduce regulatory oversight on those companies that strive to achieve compliance through third-party audits and the use of ISO standards in their hazmat activities. The system, Robert said, could be seen as a complement to the current Systems Integrity Safety Program and will allow PHMSA to employ its inspection staff where they are needed – focusing on higher risk companies. He said the criteria for the system will be finalised next year.
Rather depressingly, Robert’s list of the common issues identified during inspections was virtually the same as PHMSA has found for years now: failure to maintain training records, failure to train hazmat employees, failure to mark or label packages properly (especially when they include GHS pictograms), incorrect shipping papers, failure to register with PHMSA, and failure to have a security pan. “Training is the root of all problems,” he said.
Robert threw a spotlight on closures, another problem area. DOT-specification or UN-standard packagings must be closed in accordance with the instructions provided by the packaging manufacturer or subsequent distributor, he reminded the audience. Manufacturers must specify the type and dimensions of the closures, including gaskets and any other components “needed to ensure that the packaging is capable of successfully passing the applicable performance tests”. They must also pass on closure instructions so as to allow the user to close the packaging in the same manner as it was tested. Shippers are required to use those instructions.
MODES OF OPERATION
Vince Babich presented an update on the work of the Hazardous Materials Division of the Federal Motor Carrier Safety Administration (FMCSA), alerting the audience to its updated website where a lot of information is readily available. Among that information is the Hazardous Materials Route Registry, where there have been some changes recently.
FMCSA recently issued a safety advisory to motor carriers and hazmat shippers requiring a Hazardous Materials Safety Permit (HMSP) under 49 CFR §385.403. An HMSP is not required for the domestic carriage of UN 1005 anhydrous ammonia of Division 2.2; however, an HMSP is required for the carriage of UN 1005 anhydrous ammonia of Division 2.3 presenting a toxic inhalation hazard, when transported in a packaging with a capacity of more than 3,500 gal (13,250 litres).
Vince also highlighted the fact that FMCSA will not issue an HMSP “just in case” – motor carriers that do not intend to actively transport materials requiring an HMSP will not be issued with one. Further, he asked holders of HMSPs that no longer actively transport such materials to contact FMCSA to be removed from the HMSP program – this cannot be done online.
Those involved in the transport of hazardous materials by water were keen to hear from the US Coast Guard (USCG) and Hillary Sadoff of the Hazardous Materials Division at USCG headquarters did not disappoint. The International Maritime Organisation’s (IMO) Maritime Safety Committee (MSC) was due to meet shortly after the COSTHA event and one important agenda item was to be the adoption of Amendment 39-18 to the International Maritime Dangerous Goods (IMDG) Code, which will be applicable from 1 January 2019 and mandatory from 1 January 2020.
The latest amendment will include the changes emanating from the UN Model Regulations, along with some mode-specific changes, notably new provisions relating to IMO Type 9 tanks, new abbreviations for segregation groups, and special provisions for the carriage of lithium batteries and vehicles powered by flammable liquid or gas. [HCB will provide a more comprehensive list of the changes in Amendment 39-18 before the end of this year.]
USCG has an important role in the inspection of containers arriving at US ports, in order to promote safety, security and stewardship for the country’s ports and waterways. Hillary explained the way the Container Inspection Program is organised, with 50 per cent of inspections focusing on import shipments of declared hazardous materials and the other half looking at general cargo for structural deficiencies in containers and undeclared hazardous materials.
The latest data available, covering 2016, revealed that deficiencies were found in 8 per cent of the nearly 24,000 containers inspected by USCG and in 6.8 per cent of the almost 30,500 containers inspected by the National Cargo Bureau (NCB). Major discrepancies involved placarding, marking and labelling; and the stowage and securing of cargo inside the freight containers.
Although COSTHA focuses largely on transport issues, its 2018 annual forum did not ignore safety and security at fixed facilities, having invited Matt Currie from the Infrastructure Security Compliance Division of the Office of Infrastructure Protection at the Department of Homeland Security (DHS) to give an update on the Chemical Facility Anti-Terrorism Standards (CFATS).
CFATS was introduced in 2006 but DHS’s authority was extended in December 2014 through the Protecting and Securing Chemical Facilities from Terrorist Attacks Act. Matt explained that facilities need to assess the volume of ‘chemicals of interest’ (COIs) at their site to establish if they have to comply with the CFATS programme, noting that all sorts of facilities could be in scope – not just the more obvious chemical plants and oil refineries but also wineries, colleges, farm cooperatives and many other industrial sites. There are some exemptions, including those facilities already regulated under the Maritime Transportation Security Act.
DHS released an enhanced tiering methodology and Chemical Security Assessment Tool (CSAT) in late 2016; this will result in a more effective allocation of facilities to the correct risk tier, with work due to be completed later this year. Matt advised that any facility manufacturing, storing or distributing any of the 300-plus COIs listed in Appendix A of CFATS to ascertain if they are within scope – Appendix A can be found on the DHS website at www.dhs.gov/publication/cfats-coi-list. Those that are within scope then need to complete and submit a ‘top screen’ at https://csat-registration.dhs.gov.
There is plenty of guidance available on the DHS website and a toll-free Help Desk (1-866-323-2957) for those struggling with the process. As an indication, Matt explained that most of the COIs are oxidisers that could be act as explosives precursors.
The second part of this two-part report on COSTHA’s 2018 annual forum in next month’s HCB will look at presentations of a more international nature. Meanwhile, readers keen to attend next year’s annual forum, which will take place in Long Beach, California from 7 to 11 April, or find out more about COSTHA’s activities should go to www.costha.com.
[post_title] => Council for compliance
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[post_modified] => 2018-07-11 09:10:39
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