PHMSA Publishes Final Rule Adopting Certain Hazardous Materials Special Permits and Approvals Into Regulations

PHMSA Publishes Final Rule Adopting Certain Hazardous Materials Special Permits and Approvals Into Regulations

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has amended the Hazard Materials Regulations (HMR) to adopt provisions from certain “widely used or longstanding” special permits and competent authority approvals with “established safety records.” 79 Fed. Reg. 15033 (March 18, 2014). The agency states in the rule preamble that the revisions “are intended to provide wider access to the regulatory flexibility offered in special permits and approvals and eliminate the need for numerous renewal requests, reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety.” [enhanced version available to lexis.com subscribers]

Special permits allow a hazardous material to be packaged or shipped in a way differing from the requirements of the HMR provided that an equivalent level of safety is maintained. A competent authority approval is a written consent required under an international standard, or is authorized in a specific section of the HMR and is issued by the Associate Administrator for Hazardous Materials Safety. See 49 CFR Part 107 [enhanced version available to lexis.com subscribers]. In issuing this rule, PHMSA recognizes that the identified special permits and competent authority approvals have a long history of safety and makes them a part of the HMR to reduce economic burdens on affected industry and the government. The rule follows three previous rulemakings codifying other special permits into the HMR. The topics covered by the special permits in the latest rule are the following, as categorized by PHMSA:

• Limited quantities of liquids and solids containing ethyl alcohol.

• Transportation of solid coal tar pitch compounds.

• Transportation of certain ammonia solutions in UN1H1 and UN6HA1 drums.

• Transportation of spent bleaching earth.

• Requalification of non-DOT specification cylinders in life-saving appliances.

• Use of regulated medical waste containers displaying alternative markings.

• Adoption of special permits to harmonize with FAA Modernization and Reform Act of 2012

The relevant approvals relate to the manufacture, marking, and sale of certain UN4G combination packagings (CA2005120010, CA2006060006, CA2006010012) and certain UN5M1 and UN5M2 multi-wall paper bags (CA20060660005).

PHMSA notes that “not every transportation situation can be anticipated and built into the regulations” and describes special permits as a vehicle for innovation, stating that they “provide a mechanism for testing new technologies, promoting increased transportation efficiency and productivity, and ensuring global competitiveness.” PHMSA suggests that implementation of new technologies and operational techniques “may enhance safety” and that special permits “reduce the volume and complexity of the HMR by addressing unique or infrequent transportation situations that would be difficult to accommodate in regulations intended for use by a wide range of shippers and carriers.”

The regulation went into effect on April 17, 2014.

 By Genevieve Essig, Associate, Jenner & Block

Read more at Corporate Environmental Lawyer Blog by Jenner & Block LLP.

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