Hazmat Shipping: Must-Know Issues

You cannot be safe and over classify.

• By Scott C. Dunsmore
• Dec 01, 2007

Because of heightened security concerns and recent hazmat transportation incidents, the shipping paper has come under more scrutiny by the U.S. Department of Transportation (DOT) and state inspectors than ever before. Shippers and carriers are being asked to demonstrate their compliance with all regulations for preparing their hazardous materials for shipment. Moreover, of the 304 civil enforcement actions closed from May 2005 to April 2006, 215 were shippers in violation of one or more of the hazmat regulations. The price they are paying is going up. The Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 raised maximum civil penalty amounts to $50,000/day/incident ($100,000/day/incident for serious violations). It’s not just the company logistics manager who has to worry.

The hazmat regulations do not restrict who can sign the shipping paper. It is not uncommon for the EH&S professional to have responsibilities for managing hazmat transportation. Whether it is a shipment of hazardous waste, the movement of raw materials into the field or another site, or the movement of unwanted surplus chemicals to another person, EH&S managers are signing shipping papers. Even though hazmat compliance may be an ancillary function, the consequences are significant for both the managers and their organizations.

DOT requires that each shipment accompanied by a shipping paper must contain a certification on behalf of the shipper. The words are few (34 to 46, depending on which one you choose), but significant:

I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name, and are classified, packaged, marked and labeled/placarded and are in all respects in proper condition for transport according to applicable international and national governmental regulations. [49 CFR 172.204(a)(2), emphasis added]

With each shipping paper and each signature, the EH&S manager asserts that everything to do with that hazmat shipment has been done 100 percent correctly, according to DOT’s rules, period. Even more disconcerting, it is unlikely the manager has personally done all of the functions himself, so he is relying on others to do the job correctly. The need to know that everything has been done correctly is essential; in fact, DOT considers the person affixing the certification signature to be a “hazmat employee” and therefore subject to the training requirements in the hazmat rules (49 CFR 172, Subpart H).

The level of function-specific training a person signing the shipping paper must complete is significant. He must know all aspects of classifying, packaging, and communicating hazardous materials. After all, if you don’t know what is required, how do you know someone else has performed his functions correctly? This article will provide an overview of the hazmat shipping and classification process. In next month’s issue, the second part of the article will address packaging, loading, and security. Along the way, we’ll identify the common mistakes and oversights made by shippers and also key management strategies that may be easily implemented to help you reduce risks conserve resources and save time.

Overview of the Hazmat Rules
Perhaps the first question that must be answered is, do the DOT hazmat rules apply? DOT requires compliance when the following four criteria are true:

¦ Transportation of
¦ Hazardous Materials
¦ In commerce
¦ By aircraft, rail car, vessel, or motor vehicle along a public highway DOT defines a hazardous material as “a substance of material, which has been determined by the Secretary of Transportation to be capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and which has been so designated. . . .” [49 CFR 171.8, emphasis added]

DOT designates hazmats primarily by defining hazardous properties. These properties are categorized into hazard classes and divisions (e.g., Class 3—flammable liquids). However, also included in the DOT definition are miscellaneous materials that may or may not be considered hazardous in the general sense. This includes hazardous wastes and substances defined by EPA, marine pollutants, and certain materials simply named by DOT as being hazardous.

In Commerce DOT takes a fairly broad interpretation of “in commerce” for purposes of the hazmat rules. Essentially, DOT has indicated that materials are transported in commerce if it is being done to further a commercial enterprise. This can include shipments of:

¦ Products to distribution centers or directly to customers
¦ Wastes
¦ Raw materials or intermediates to/between facilities

The Offering Process
The hazmat rules are fairly prescriptive. A careful study of the rules shows there is a specific sequence you must follow, from the initial intent to ship through the loading, transportation, and unloading. Unfortunately, the rules are not written in sequential order. To properly manage the shipping process (from classification to loading), the EH&S manager needs to understand this process—not only to know who is responsible for what, but also to know what each of those people must depend on to do their functions properly. This process will help the manager find weaknesses and implement corrections, as needed.

To assist students in our training workshops, we have created a mechanism called

The Ten Steps™. Following is a brief summary of those steps: 1. Classifying 2. Selecting a proper shipping name 3. Selecting a package 4. Marking and labeling each package 5. Preparing the shipping documents 6. Providing and using placards 7. Transporting (includes loading and unloading) 8. Preparing for and responding to emergencies 9. Administration 10. Keeping up with changes and training

This is simply a guideline or roadmap directing the shipper along the road from initial intent to offer a material for shipment through its entry into transportation and arrival at its destination, as well as identifying support and administrative responsibilities.

Classification
There are two fatal mistakes shippers can make regarding hazmat shipments:

1. Under classifying: failing to declare a material as hazardous or failing to identify all applicable DOT hazards

2. Over classifying: identifying DOT hazards that do not apply

As indicated above, everything done in the hazmat shipping process is based on the DOT hazards that apply. This is the keystone. A review of DOT’s enforcement guidelines indicates the significance it places on proper classification. The list of frequently cited violations at 49 CFR 107, Appendix A identifies undeclared shipments as having a baseline penalty of $15,000 and up per violation. No other listed penalty has a higher base amount (remember, the maximum penalty can be as high as $50,000/day/incident).

To be successful at classifying, the shipper must identify each material being offered and identify all DOT hazards for each of those materials. You must determine whether you are shipping a single material that is a mixture of different constituents or a package that has different materials, each with its own properties.

Once you’ve identified what you are shipping, then you can determine whether it is a DOT hazmat and identify its hazards.

Testing vs. Knowledge
It is not necessary to quantify or measure every property of a material or identify 100 percent of the constituent make up in order to classify it under the DOT rules. You must determine whether the properties of the material cause it to meet or not meet hazard class definitions. Most of the hazard class definitions provide specific thresholds that can be measured. To determine whether a material meets one of these hazard class definitions, all you need to know is whether the material is above or below the threshold; the actual number may not be significant.

The MSDS
One of the common sources of knowledge the shipper might have is the Material Safety Data Sheet (MSDS). The EH&S manager is probably very familiar with these documents as part of the site’s workplace safety program. However, one of the common pitfalls is that there is too much stock put in this one document to provide us with all of the answers to our regulatory questions. Unfortunately, while it does have value, there are limitations.

First, it is important to note the MSDS is primarily a workplace safety document, not a transportation document. What might be “hazardous” under one program may not be under another. For example, flammable liquids are defined under OSHA’s general industry standards as those liquids with a flash point < 100° F (37.8° C). The DOT threshold for flammable liquids is < 60° C (~140° F). The EH&S manager must be careful not to automatically transfer a hazard designation from one program to another.

It is also important to remember that the MSDS was prepared by the manufacturer for the properties the material had as the manufacturer produced it. The EH&S manager must determine whether those properties are transferable to the material being offering for shipment.

Shipping Hazardous Wastes
Again, be careful. What is hazardous under one program may not be in another. Case in point: hazardous wastes. DOT defines hazardous wastes as those that are “subject to the Hazardous Waste Manifest Requirements of the U.S. Environmental Protection Agency specified in 40 CFR Part 262.” [49 CFR 171.8] There are special communication and classification requirements under the DOT rules when you ship a hazardous waste. However, it must be hazardous waste, as defined by DOT.

This is important to remember when you manage wastes that are hazardous under a state program but not under the federal hazardous waste rules. In some of these situations, the waste may not meet any of DOT’s hazardous materials criteria. For example, a common flea-killing product has an oral LD50 of 1943 mg/kg. This material would be a hazardous waste in California [22 CCR 66261.24]. It is neither a hazardous waste under federal rules nor a hazardous material under DOT rules.

This article originally appeared in the December 2007 issue of Occupational Health & Safety.