PHMSA is closing their rulemaking having reconsidered their proposal for additional regulations associated with cargo tank motor vehicle (CTMV) loading or unloading operations. This action is based on the findings of the regulatory assessment, comments to docket of this rulemaking, and completion of a supplementary policy analysis on how best to address the safety risks of bulk loading and unloading operations. As an alternative to new regulatory requirements, PHMSA will be issuing a guidance document to provide best practices for CTMV loading and unloading operations; and will be conducting research to better understand the wide range of human factors that contribute to hazardous materials incidents including those associated with CTMV loading and unloading operations.
On March 11, 2011 PHMSA published a NPRM under Docket PHMSA-2007-28119 (76 FR 13313) (HM-247) to amend the hazardous materials regulations (HMR; 49 CFR Parts 171-180) by requiring each person who engages in CTMV loading or unloading operations to perform a risk assessment of its loading and unloading operations and develop and implement safe operating procedures based upon the results of the risk assessment. PHMSA also proposed additional personnel training and qualification requirements for persons who perform these operations. In the NPRM, PHMSA discussed the safety problem associated with CTMV loading and unloading operations, including:
- A summary of loading and unloading incident data;
- National Transportation Safety Board (NTSB) and Chemical Safety Board (CSB) safety recommendations issued to PHMSA as a result of accident investigations related to bulk loading and unloading operations;
- Recommended operating procedures proposed by the Interested Parties for Hazardous Materials Transportation (Interested Parties) (an informal association of offerors, carriers, and industrial package manufacturers);
- A petition (P-1506) for rulemaking submitted by the Dangerous Goods Advisory Council (DGAC); and Comments received in response to PHMSA’s notice of
- recommended practices published on January 4, 2008 under Docket Number PHMSA-2007-28119 (73 FR 916) (Notice No. 07-9).
Risk Assessment
PHMSA proposed to require any person who loads or unloads hazmat or provides transfer equipment to load or unload a CTMV to prepare a risk assessment of the operation. The risk assessment was to include specific minimum measures to address the safety of such operations. PHMSA received a substantial number of comments on the proposed provisions associated with this requirement to conduct a risk assessment. Commenters primarily expressed concern over the possibility of duplication of efforts by facilities and carriers.
Operating Procedures
PHMSA proposed to require each person who is subject to the risk assessment requirement to develop, maintain, and adhere to an operating procedure for the specific loading or unloading operation based on the completed risk assessment. The operating procedures were to include provisions that address pre-loading/unloading, loading/unloading, emergency management, post-loading/unloading, design, maintenance and testing of transfer equipment, facility oversight of carrier personnel, and recordkeeping. Commenters questioned the intent of provisions for the maintenance and testing of transfer equipment within the operating procedure requirements. Commenters discussed additional issues such as alternative measures for attendance during a loading operation.
Training and Qualification
PHMSA proposed annual evaluation of hazmat employees performing CTMV loading and unloading operations through measures such as direct observation of routine performance of duties or through practice sessions and drills. Many commenters strongly opposed this proposal. They generally asserted that PHMSA significantly underestimated the costs of such a requirement in the preliminary assessment for the NPRM.
Recordkeeping
PHMSA proposed recordkeeping requirements for the written risk assessment and operating procedure. Several commenters suggested that this proposed requirement to document and retain risk assessments is overly burdensome and unnecessary.
Compliance
Commenters requested an extended compliance date to allow for time to conduct a complete review of current practices and to implement improvements or updates while others suggested that a significant majority of potentially affected entities already have operating procedures in place that would satisfy the regulations set forth in this proposed rule such that an extended compliance period would not be necessary.
In consideration of the negative comments on the NPRM and uncertainties about regulatory action as well as the uncertainties of the regulatory assessment, PHMSA conducted a supplementary policy analysis to help decision-makers determine whether this effort is the best course of action. After this policy analysis, we reconsidered our approach to address the safety risks of bulk loading and unloading operations through rulemaking. The analysis raised concerns on the effectiveness of implementing any new regulations covering loading and unloading operations including whether any proposed regulations would
be: (1) Redundant because the activity is already covered in some manner under the current HMR; (2) impactful in that many of the incidents having occurred in the past would probably continue to occur because of the human element in incidents indicating that further regulation may be ineffective; and (3) confusing to implement without an memorandum of understanding (MOU) among the agencies that have oversight clearly defining roles and enforcement of these types of operations.
The subsequent recommendations of the assessment include (in no particular order of priority):
(1) Preparing a guidance document that, together with current regulations, provides direction on bulk loading and unloading operational procedures, use of personal protective equipment, and maintenance and inspection of transfer equipment;
(2) engaging in a rigorous outreach campaign to raise awareness;
(3) implementing a human factor study associated with bulk loading and
unloading operations; and
(4) finalizing a (MOU) with the Occupational Safety and Health Administration (OSHA) and, possibly, the Environmental Protection Agency (EPA) in order to specify any new regulatory requirements and enforcement roles.
These recommendations are discussed in further detail HERE.