So many records! Leaves you dreaming of shredders! What hazardous materials (hazmat) transportation documents do you have to keep at your office? Which ones must go with the shipment? As a carrier/driver, whom can you trust? At what point does your hazmat truck become a rolling records room? Today we will look at whether your hazmat driver must carry a special permit. If you think it is an easy “yes” or “no,” you don’t know the Pipeline and Hazardous Materials Safety Administration (PHMSA)!
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Under the Department of Transportation’s PHMSA, special permits allow a company or individual to package or ship a hazardous material in a manner that varies from the regulations provided an equivalent level of safety is maintained. The PHMSA may also grant variances from the hazardous materials regulations (HMRs) if actions are taken in accordance with standards issued by competent international authorities, such as the International Maritime Dangerous Goods code or the International Civil Aviation Organization.
When a company is granted a special permit, it receives a special permit authorization letter along with the special permit document itself. The PHMSA recently provided some guidance as to whether the hazmat driver is required to carry the special permit if the particular shipment is authorized under one. The answer: maybe, maybe not.
First: Is the shipper (offeror) of the hazardous materials shipment required to provide the driver with a copy of the special permit?
Not necessarily. The offeror is only required to provide a copy of the special permit to the driver when the provisions of the specific special permit require it to be in the possession of the carrier during transportation.
Second: Can the driver rely on information provided by the offeror?
Kind of. Drivers who transport a hazardous material may rely on information provided by the offeror or a prior carrier, unless the driver knows or a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeror or prior carrier is incorrect.
Third: Can a driver be cited and subject to civil penalties because he or she may be transporting a special permit load without possessing a copy of the current special permit?
No, but here’s where the knowing person and reasonable person/reasonable care provision comes in. That’s not too comforting, but PHMSA officials say that they generally try to bring enforcement proceedings against the person who first caused the transportation of the noncomplying shipment. Still, this information is not too comforting, as this is a practice and not a regulation.
But PHMSA officials point to a 1998 interpretation of the reasonable person/reasonable care provision. That interpretation hinges on whether the carrier/driver acts “knowingly” in accepting a noncompliant shipment. According to the interpretation, a carrier knowingly violates the hazmat regulations when the carrier accepts or transports a hazardous material with actual or constructive knowledge that a shipment is noncompliant. This means that a carrier may not ignore readily apparent facts that indicate that either a shipment declared to contain a hazardous material is not properly packaged, marked, labeled, placarded, or described on a shipping paper; or a shipment actually contains a hazardous material governed by the hazmat regulations despite the fact that it is not marked, labeled, placarded, or described on a shipping paper as containing a hazardous material.
Takeaway
This begs the question: As a carrier/driver, are you required know for certain that a shipment is authorized under a special permit, and, if so, should you be familiar with the provisions of that special permit? Or, can you really take the offeror’s word for it? Neither the 1998 interpretation nor the recent PHMSA guidance is helpful in more than a “Yeah, don’t worry about it” kind of way.