October 2012

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Regulatory One dealer's run-in with the federal hazardous materials transportation rules and what you need to know to stay of out trouble. BY PATRICK MCCONNELL and How to Avoid It Heartburn Hazmat Recently our company had the misfortune of experiencing the federal Hazardous Materials Regulations (HMR) "up close and personal." This small business (about 50 employees) learned a painful lesson through a combina- tion of bad luck and an incomplete awareness of the HMR. The result was a substantial civil penalty. I hope that our experience will prompt you to take preventive measures rather than waiting to become a fish in the barrel. Before relating our sad story let me impress you with how much I've learned. First, the rules are based on the statute formerly known as the Hazardous Materials Transportation Act, 49 United States Code (U.S.C.) §§ 5101–5128. They span over 1,000 pages in Title 49 Code of Federal Regulations (CFR) parts 171-180. (Yes, the HMR are available on-line free of charge; just search "49 CFR hazardous materials" on Google.) You don't need to read all 1,000-plus pages, but being familiar with their structure and potential application to your business is essential. The HMR are different from the hazardous waste and disposal rules issued by the EPA, state and local authorities, which focus on environmental issues. The HMR address trans- portation-related issues only. They are issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA), an agency of the U.S. Department of Transportation. However, What is "ORM-D?" According to Wikipedia, ORM-D is a marking for mail or shipping in the United States that identifies other regulated materials for domestic transport only. Pack- ages bearing this mark contain hazardous material in a limited quantity that presents a limited hazard during transportation, due to its form, quantity, and packaging. 40 | www.cedmag.com | Construction Equipment Distribution | October 2012 they are enforced by the agency responsible for regulating the particular mode of transportation (i.e., the Federal Aviation Administration when transported by air, Federal Railroad Administration when transported by rail, etc.). The primary purpose of the HMR is to ensure safety when transporting these materials. Therefore, portions of the HMR (i.e., parts 171-173) apply to all modes of transportation and specific rules cover shipment by rail, vessel, air and public highway. These can be found in parts 174-177, respectively. In spite of the HMR's broad scope, it's not that difficult to determine whether a material is considered hazardous for shipping purposes. The best place to start is 49 CFR § 172.101 (from now on I'll just cite the section number since all references are to Title 49 CFR). That section contains the Hazardous Materials Table and it summarizes the require- ments that apply to any hazardous materials (hazmat) transportation. The table is arranged alphabetically, and while many of the items have chemical or other scientific- sounding names there are also very basic ones like Paint and various Petroleum Products. If the item is listed, the table points you to the other regulatory requirements as well as any exceptions that may apply. A second excellent resource is the transportation section of the product's Materials Safety Data Sheet (MSDS), which alerts you that the item is a hazmat by listing the proper shipping name, UN classification, packing group, and other particulars. The HMR apply if you are a hazmat employer; your employees who perform any of the pre-transportation func- tions listed in § 171.1(b) are hazmat employees and other employees may also be covered. Both terms are essential to your understanding of HMR; they are defined in § 171.8. If your dealership prepares and ships hazmat only once in a while or every day, you are a hazmat employer. Consequently, your hazmat employees must be trained in

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