RSPA Amends HM Incident Reports Effective January 1, 2005

The Research and Special Programs Administration (RSPA) has issued a final rule in HM-229, 68 Federal Register 67746 (December 3, 2003) that changes the hazardous materials incident reporting requirements for all hazmat incidents occurring on and after January 1, 2005.

The changes include: collecting more information on the incident report form, DOT Form 5800.1; expanding the exceptions from incident reporting; expanding reporting to persons other than carriers; and reporting non-release incidents involving cargo tanks. In addition, the new rules are designed to focus attention on undeclared hazmat shipments.

The new rule allows filing of incident reports electronically, by fax, e-mail or through the Internet. But RSPA stated that all means of electronic filing “will not be available immediately,” and that the agency is in the process of “developing the capability to allow electronic submission of the form and bulk transfer.” RSPA states it will issue an advisory notice upon completion of this effort. In the meantime, as of January 1, 2005, RSPA will continue to accept paper filing of incident reports, but will no longer require duplicate copies.

RSPA will allow the reporter to store the report form at a location other than the reporter’s principal place of business if the report can be made available at the principal place of business within 24 hours of a request by RSPA personnel.

RSPA has revised the report form to add 15 data elements to the basic incident information and has provided space on the form for recommendations or actions. Completion of this section is voluntary; the intent of this change is not to place blame or determine the exact cause of the incident, but to “gather ideas on preventing the recurrence of incidents.”

The final rule removed the requirement for immediate telephonic notification for property damage that exceeds $50,000, and specified that in other required circumstances, telephonic notification must be made “as soon as practicable following an occurrence” and in all instances within 12 hours after an event requiring notification.

The most contentious part of the final rule involves application of the new scope of the Hazardous Materials Regulations as set out in HM-223, 68 Federal Register 61906 (October 30, 2003) to the incident reporting requirement, which expands the reporting requirements for the first time to non-carriers in some instances.

The HM-229 final rule requires reporting of incidents that occur when the material is “in transportation.” Consistent with the definitions adopted in HM-223, incidents that occur during loading operations conducted by carrier personnel or in the presence of carrier personnel must be reported, along with incidents that occur during unloading operations conducted prior to a carrier’s departure from the consignee’s premises.

Hazmat incidents that occur during loading operations conducted by a shipper prior to a carrier’s arrival at a facility to pick up the shipment, however, or during unloading operations conducted by consignee personnel after the hazardous material has been delivered and the carrier has departed the premises are not required to be reported. The new rule also requires reporting by non-carriers during in-transit storage when the hazardous material is in the possession of the storage facility operator.

Finally, RSPA exempts from reporting requirements any incident involving small spills of low hazard materials. A report is not required for any incident that is not transported by air and meets certain other criteria:

  • The shipment has not been offered for transportation or transported by air.
  • None of the criteria of §171.15 apply.
  • The material is not a hazardous waste.
  • The material is properly classed as ORM-D or a Packing Group III material in Class or Division 3, 4, 5, 6.1, 8 or 9.
  • Each package has a capacity of less than 20 liters (5.2 gallons) for liquids or less than 30 kg (66 pounds) for solids.
  • The total aggregate release is less than 20 liters (5.2 gallons) for liquids or less than 30 kg (66 pounds) for solids.
  • The material does not meet the definition of an undeclared hazardous material in §171.8
Gases and Welding Distributors Association
Meet the Author

GAWDA Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC, in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.