DOT Changes Special Permits Process In Response To Criticism

On March 4, 2010, the Department of Transportation (DOT) Inspector General’s Office published its final report on the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) special permits (formerly known as exemptions) and approvals program. Due to the wide variety of products and processes subject to the Hazardous Materials Regulations (HMR), many hazardous materials are transported under the terms of special permits and approvals, which provide relief from the HMR and allow alternative methods of compliance if certain conditions are met.

The Inspector General’s audit objectives were to evaluate the effectiveness of PHMSA’s (1) policies and processes for reviewing and authorizing special permits and approvals, (2) coordination with the affected Operating Administration before issuing any of these special authorizations, and (3) oversight and enforcement of approved parties’ compliance with the terms and conditions of these authorizations.

The IG’s review identified several deficiencies with this process. Specifically, PHMSA issued special permits and approvals without adequately reviewing applicants’ safety histories and proposed level of safety, or coordinating with the affected operating administrations (such as the Federal Motor Carrier Safety Administration for hazmat transported by truck). The IG also found that PHMSA did not conduct regular compliance reviews of individuals and companies who have been granted special permit and approvals. In response, PHMSA has already developed action plans to address these concerns, and an update with the new criteria and procedures is available on the PHMSA website at http://phmsa.dot.gov/hazmat/enhancement_program

Under the new procedures, PHMSA will consult with the modal offices within DOT when a special permit application is received, and will determine if the applicant’s HMR violations record warrants granting the special permit. PHMSA will also audit special permit holders to determine if they are complying with the terms of the permit. A new online application process intended to allow tracking of applications and expedited processing is available on the agency’s website.

Cylinder owners have unknowingly received back cylinders marked as retested but that did not undergo the actual test.

In addition, PHMSA has begun a 120-day plan to go through all of the current special permits to identify those permits with broad applicability and a good safety record for incorporation into the Hazardous Materials Regulations. Special permits are granted for processes or procedures that offer alternative methods of compliance with the HMRs while providing the same margin of safety as the regulations.

PHMSA is attempting to reduce the number of outstanding special permits by including certain processes or procedures in the HMRs, thereby eliminating the need for periodic reapplication by the holders of and participants in the Special Permit and review by the agency. The Special Permits will be grouped for publication in the Federal Register; the first group will likely include those Special Permits held by associations and those involving leak testing of cylinders (there are currently some 50 Special Permits involving cylinder retesting). PHMSA intends to publish two groups of Special Permits in the Federal Register each year for consideration of incorporation into the HMRs over the next several years.

Finally, The Office of the Inspector General at DOT is now investigating facilities used to retest cylinders periodically, as required under the HMRs. The investigation is exploring incidents where some retesters have marked cylinders without actually doing the retest, in some cases for payoffs. There have also been instances where cylinder owners have unknowingly received back cylinders marked as retested but that did not undergo the actual test. The IG wants to determine whether this practice is widespread and whether it has any regulatory implications for PHMSA or the industry.


Gases and Welding Distributors Association
Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Rick 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.