FISH OUT OF WATER

April 21, 2015 HAZMAT ROB

FISH OUT OF WATER

A final rule was published in the Jan. 8, 2015 Federal Register which contains additions and exceptions to the Marine Pollutant Regulations in 171.4 and to the List of Marine Pollutants in Appendix B to §172.101.  DOT added 62 new materials to the list and provided a new exception for small containers of marine pollutants when shipped by water or air. There is also one deletion from The Marine Pollutant List in order to be consistent with the international IMDG Code.  The entry for Chlorotoluenes (meta-; para-) was removed, based on its removal from the IMDG Code. Marine pollutants were only regulated domestically under the DOT Regulations when shipped in bulk containers (in any mode) and non-bulk by vessel only.  The Jan. 8 Final Rule, incorporating international exceptions for marine pollutants in the water mode, adds exceptions for certain small packages, which applies to ALL modes of transportation.  These exceptions are consistent with the UN Model Regulations, the IMDG Code, and the ICAO Recommendations. The 171.4 Marine Pollutants Exceptions states, “Except when all or part of the transportation is by vessel, the requirements of this subchapter specific to marine pollutants do not apply to non-bulk packagings transported by motor vehicle, rail car or aircraft.”  Now under HM-215M, single or combination packagings of Marine Pollutants containing a net quantity per single or inner packaging of 5 L or less for liquids or having a net mass of 5 kg or less for solids, are not subject to any other requirements of [Subchapter C] provided the packagings meet the general requirements in 173.24 and 173.24a. This exception would never apply to marine pollutants that are a hazardous waste or hazardous substance. In the case of marine pollutants also meeting the criteria for inclusion in another hazard class, all provisions of [Subchapter C] relevant to any additional hazards continue to apply. PHMSA is not proposing to remove the ability to offer marine pollutants as limited or excepted quantities, but does agree with commenters that the vast majority of shippers of limited or excepted quantity amounts of marine pollutants will choose to utilize the new exception instead of existing limited or excepted quantity provisions. DOT, in this Final Rule, makes clear there is no restriction on the number of 5 L containers that are permitted in a combination package, so a package containing four 5 L bottles would contain 20 L of non-regulated marine pollutants, but a 10 L jerrican would be fully regulated. That means there is no limit to the number of 5 L or 5 kg single or inner packagings that may be placed inside of a package under the conditions of the exception. There would be no requirement to mark a freight container with the large marine pollutant marking, because the freight container contains nothing but packages of excepted marine pollutants. As long as the packaging meets the 173.24 and 173.24a packaging provisions, no marine pollutant marking would be required on a cargo transport unit, regardless of the number of packages being offered under the exception. The use of the exception for single or inner packagings of 5 L or 5 kg or less is not limited to materials offered under the UN identification numbers UN3077 and UN3082, but would also apply to marine pollutants that meet the definition of other hazard classes (i.e., paints or n.o.s. entries that meet the definition of more than one hazard class). However, it must be remembered that if the marine pollutants also meet the criteria for inclusion in another hazard class, all provisions of Subchapter C relevant to any additional hazards continue to apply. So if a shipper of a marine pollutant had a chemical that was a flammable liquid, Class 3 and also a marine pollutant, then the shipping paper would not have to include the words “Marine Pollutant” and  the containers would not bear the marine pollutant mark by vessel if the inner packaging(s) didn’t exceed the 5 Liter and 5 Kilogram amounts.  But the container would still require the the shipping paper with its proper shipping name, UN number, hazard class 3 and Packing Group, and the container would still require the Shipping Name, UN number and  Flammable Liquid Label. The Federal Register documents that since 2009, of the 415 initial reports to the NRC involving containership during that period.  None of the incidents involved containers of the sizes, amounts and types listed in the exception. I will be reviewing all of the major changes in the Jan. 8, 2015 Final Rule in the coming weeks. But if you have any questions on the changes to the Overpack, Batteries, Cargo Aircraft Only Label and the new and revised Proper Shipping Names, Hazard Classes, Packing Group Table changes before I do, please give us a call. Thank you for your readership and support.