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U.S. PHMSA Study Will Assess Aligning U.S. and International Regulations for Aerosol Containers

by Bergeson & Campbell

The U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) routinely reviews and amends the Hazardous Materials Regulations (HMR) to harmonize the HMR with international regulations and standards.  In February 2019, PHMSA’s Office of Hazardous Materials Safety (OHMS) contracted with the Cambridge Systematics (CS) Team to conduct a risk assessment for the transportation of aerosol containers to align U.S. and international regulations.  The study is intended to determine whether the United Nations Recommendations on the Transport of Dangerous Goods — Model Regulations (Model Regulations) definition of aerosols maintains an equivalent level of safety to the definition in the HMR and to assess the risk associated with aligning the definitions.  The study is expected to be completed in February 2020, and any rulemaking to align the definition of aerosol containers would be issued after that.

Federal law and policy favor the harmonization of domestic and international standards for hazardous materials transportation.  In a November 27, 2018, proposed rule to amend the HMR to maintain alignment with international regulations and standards, PHMSA notes that it was directed by the federal hazardous materials law “to participate in relevant international standard-setting bodies and requires alignment of the HMR with international transport standards to the extent practicable.”  While federal hazmat law allows PHMSA to depart from international standards to promote safety or other overriding public interest, “it otherwise encourages domestic and international harmonization.”

The Model Regulations define aerosol or aerosol dispenser as “an article consisting of a non-refillable receptacle meeting the requirements of 6.2.4, made of metal, glass or plastics and containing a gas, compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state or in a gaseous state.”  The HMR, in 49 C.F.R. Section 171.8, defines aerosol as “an article consisting of any non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 Packing Group III material) liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.”  Unlike the Model Regulations, the HMR permits only an aerosol with a liquid, paste, or powder.  Industry has petitioned PHMSA to align the definitions and permit certain non-refillable gas containers with or without a liquid, paste, or powder to be transported without needing a Special Permit.

Commentary

Since the study is not expected to be completed until February 2020, there will be no immediate impact for U.S. manufacturers of aerosol products.  The study will likely conclude that the definition of aerosols in the Model Regulations ensures an equivalent level of safety to the definition in the HMR, and that there is no risk associated with aligning the definitions.  Should this be the outcome, PHMSA would then initiate a rulemaking.  We would expect the rulemaking to align the HMR definition with the Model Regulations and permit certain non-refillable gas containers with or without a liquid, paste, or powder to be transported without needing a Special Permit.  Stakeholders may wish to keep an eye on the study and, of course, any ensuing rulemaking and comment as appropriate.


This article has been republished with the permission of Bergeson & Campbell, P.C. The original post can be found at the Bergeson & Campbell, P.C. website.

Bergeson & Campbell, P.C. (B&C®) is a Washington D.C. law firm providing decades of experience in the manufacture, handling, and transport of conventional, biobased, and nanoscale industrial, agricultural, and specialty chemicals, including product approval and regulation, product defense, and associated business issues. www.lawbc.com.

Forecast for U.S. Federal and International Chemical Regulatory Policy 2019: Hazardous Materials

The ACTA Group of Bergeson & Campbell PC recently wrote an article in the National Law Review (NLR) forecasting the U.S. federal and international chemical regulatory policy related to hazardous materials for the coming year. The two major areas covered are hazardous materials transportation and trade.

Under hazardous materials transportation, the NLR article predicts that the
The U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) will face the challenge of a growing burden on it as the scope and complexity of its mission grows. The article predicts this pressure will require the PHMSA to fundamentally rethink how it will use data, information, and technology to achieve its safety goals.

The article states that new information and research will drive much of what PHMSA undertakes in 2019. Advances in technology, enhanced commerce, and a rapidly evolving global trade in hazardous materials must be matched by PHMSA if it is to satisfy its mandates. At this point, PHMSA appears to recognize these new challenges and is poised to maintain its highly honed edge on hazardous materials transportation.

Specific actions that PHMSA will undertake in 2019 include the following:

  • Legislative requirements in the Fixing America’s Surface Transportation (FAST) Act, especially as it applies to high hazard flammable trains – PHMSA is slated to promulgate a final rule pursuant to the FAST Act that will expand the applicability of comprehensive oil spill response plans based on thresholds of liquid petroleum that apply to an entire train ;
  • Transportation of lithium batteries by air;
  • Conversion of special permits;
  • International standards harmonization; and
  • Identifying research gaps and determining priorities.

The NLR article states that PHMSA can be expected to continue to promulgate rules in compliance with its statutory mandates but it also recognizes the need to shore up gaps and to keep pace with an accelerating array of products that are transported in commerce. New information and research will drive much of what PHMSA undertakes in 2019. Advances in technology, enhanced commerce, and a rapidly evolving global trade in hazardous materials must be matched by PHMSA if it is to satisfy its mandates.

With respect to U.S. trade with other countries, the NRL article discusses the five pillars of U.S. trade policy:

  1. Trade Policy that Supports National Security Policy;
  2. Strengthening the American Economy;
  3. Negotiating Trade Deals that Work for All Americans;
  4. Enforcing and Defending U.S. Trade Laws; and
  5. Strengthening the Multilateral Trading System.

Specific trade actions are discussed in the NRL article that apply hazardous materials including the new agreement that replaces the North American Free Trade Agreement and the new focus of the U.S. on bi-lateral trade agreements.