Hazmat Incident Reporting Rules Clarified

Although the requirements for hazmat incident reporting under HM-229 became effective as of January 1, 2005, there is still some confusion among shippers and carriers as to who must file Hazardous Materials Incident Reports in what situations.

Although the Pipelines and Hazardous Materials Safety Administration (PHMSA) intended to expand the scope of filing requirements to include shippers and receivers (non-carriers) in the final rule, in fact, shippers and receivers are never required to file HM incident reports, with two exceptions.

The first exception is if the shipper or receiver is also the carrier. The second exception is if the shipment goes into storage incidental to transportation.

The HM-229 final rule requires reporting of incidents under 49 CFR __171.15 and 171.16 that occur when the material is “in transportation.” Consistent with the definitions previously adopted by PHMSA in its HM-223 final rule, 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.

Section 171.15(a) and section 171.16(a) of title 49 CFR require “each person in physical possession of a hazardous material” at the time of an incident to make a report. An incident that occurs while a shipper is filling hazmat packaging, including cylinders, cargo tanks, portable tanks or a rail car, or loading packaged or containerized hazardous materials onto a transport vehicle before a carrier arrives at the facility to pick up the shipment, is not required to be reported because the incident occurs prior to the onset of transportation in commerce.

An incident that occurs while the carrier that will be transporting the hazmat is observing or participating in the filling or loading operation must be reported because the carrier is deemed to be in possession of the hazardous material at that point. The carrier must complete the report for such incidents, however. PHMSA has clarified this analysis in an interpretation letter to Pfizer Inc. dated August 5, 2005, Reference No. 05-0148.

Similarly, if a hazmat incident occurs during unloading when the carrier is present, the carrier must file the incident report as the hazardous material is still in the possession of the carrier. If a hazmat incident occurs during unloading after the carrier is no longer present, however, the unloading activity is no longer “incidental to movement” and therefore is not subject to the HMRs and its incident reporting requirements.

For the second exception, if a shipment is unloaded into a temporary storage facility with the intent (as set out in the shipping papers or otherwise) to send the shipment to a beyond point, the consignee accepting the shipment into the facility must file a report for any incidents that occur outside the carrier’s presence. That shipment is still considered to be in “transportation” during the time of storage.

Finally, if a consignee discovers that it has received an undeclared hazardous material after the carrier is no longer present at the facility, the consignee is not required to file an incident report because at the time of discovery the shipment was not in transportation. If a consignee discovers an undeclared hazardous material during unloading while the carrier is present, the carrier must file the hazmat incident report as the hazardous material is considered to be in the possession of the carrier.

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.