DOT Regulations Come Under Scrutiny

Regulatory personnel at the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) have come under scrutiny by Congress and the DOT Inspector General’s Office (IG) for being too cozy with the industry they regulate. As a result, the agency is revamping procedures for granting special permits as an alternative means of complying with the hazardous materials regulations.

On September 10, 2009, the House of Representatives Transportation and Infrastructure Committee held a hearing ominously titled, “Concerns with Hazardous Materials Safety in the U.S.: Is PHMSA Performing its Mission?” The committee discussed the near-complete audit of PHMSA’s Special Permits and Approvals Office by the Office of the Inspector General. During the hearing, committee members criticized PHMSA’s actions within the Special Permits and Approvals Office, commenting that the department appeared more interested in appeasing the industry than ensuring safety. During the hearing, the Deputy Secretary of Transportation acknowledged that PHMSA needed to take a more active role with modal agencies (such as the Federal Motor Carrier Safety Administration) and vowed to complete thorough corrective actions for items identified in the IG Report (which is not yet public).

PHMSA’s database contains some 4,500 special permits (formerly called exemptions) and 125,000 approvals. (Both are exemptions from the Hazardous Materials Regulations (HMRs)—an approval must be specifically authorized by the regulations; otherwise, the relief from regulations is termed a special permit.) PHMSA may exempt an entity from certain requirements in the HMRs as long as the activity achieves a safety level at least equal to the safety level required by the law or regulation, or, if a required safety level does not exist, is consistent with the public interest.

The DOT Inspector General has complained that PHMSA does not review the prior safety history of an applicant when considering a request for a special permit or approval. In addition, the IG’s Office noted that PHMSA has given special permits in the name of a trade association without reviewing the safety history of each of the member companies that might take advantage of the special permit. Further, the IG stated that PHMSA has approved special permits and approvals with incomplete supporting information, and with little or no input from the modal administrations at DOT (FMCSA, FRA and FAA).

PHMSA has developed an action plan to address the concerns raised by the IG and Congress. The agency is revising its application process for special permits and approvals to verify that all applications are adequately documented and supported to ensure that the alternative approach will provide an equivalent level of safety. They will also evaluate the applicant’s “safety fitness” by looking at the entity’s safety history, and coordinate the review with the appropriate modal administration at DOT. PHMSA will also develop a plan to incorporate special permits into the HMRs themselves, so that additional special permits are not necessary.

Although this approach might seem laudatory, it is more the result of politics than sound policy. Congress thinks that special permits and approvals should be rare events, but the fact is that the HMRs regulate thousands of different types of materials posing a variety of hazards in hundreds of different industries. As technology advances and operations evolve, shippers and carriers need flexible methods to comply with the HMRs. These exemption proceedings provide alternative compliance methods without having to amend the regulations for every affected industry or type of product—a process that can take years at best.

The process works well now. The excellent safety record of the 800,000 daily shipments of hazardous materials is evidence of that. Nowhere in the hearing record or the IG’s statement did anyone offer evidence that shipments moving under special permits or approvals were less safe than hazmat shipments generally. But it will now take longer, and require more effort, to obtain such hazmat permits or approvals from the DOT/PHSMA, without any corresponding enhancement in safety.

Gases and Welding Distributors Association
GAWDA’s Government Affairs & 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 rpschweitzer@rpslegal.com.