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Applicability of the HMR to HazMat Unloading Operations

Applicability of the HMR to HazMat Unloading Operations

HazMat Employee is defined at 49 CFR 171.8 as a full-time, part-time, temporary, or self-employed person who in the course of employment directly affects hazardous materials transportation safety.  This includes but is not limited to persons who:

  • Load, unload, or handle hazardous materials.
  • Design, manufacture, inspect, recondition, or repair hazardous material packagings.
  • Prepares hazardous materials for transportation.
  • Is responsible for safe transportation of hazardous materials.
  • Operates a vehicle used to transport hazardous materials.

The above definition may not be as complete as you may wish since it does not identify specific activities that meet the definition of a HazMat Employee.  Yet, you as the HazMat Employer have the responsibility to…

  1. Identify which of your operations are subject to the US DOT Hazardous Material Regulations (HMR).
  2. Determine which employees meet the US DOT definition of a HazMat Employee.
  3. Train, test, and certify your HazMat Employees every three years pursuant to 49 CFR 172, Subpart H.

This article will focus on one aspect of handling hazardous materials in transportation, that of unloading hazardous materials from the vehicle into your facility.  Below are three scenarios at a “Company A” and an explanation of how each may or may not be subject to the HMR and whether or not its employees are HazMat Employees.

Company A receives hazardous materials in a variety of forms:

  1. 55-gallon drums (non-bulk packagings) and 300-gallon portable tanks (bulk packagings) delivered by semitrailer to its Receiving Dock.  Company A’s employees assist the driver in the transfer of packagings from the vehicle into its facility.
  2. 5,000-gallon semitrailer tanker (cargo tank motor vehicle or CTMV) unloads bulk quantities at its tank farm.  While unloading operations are handled by the driver of the CTMV, a Company A employee supervises the process.
  3. 22,000-gallon railroad tank cars are detached from the train by railroad personnel, moved onto a private spur owned by Company A, and left for facility personnel to unload.

First, you must understand which activities are subject to the Hazardous Material Regulations (HMR).  Pursuant to49 CFR 171.1(c), the full HMR apply to the transportation in commerce of a hazardous material and each person involved in that process.  “Transportation” means the movement of property and loading, unloading, and storage incidental to that movement.  “Unloading incidental to movement” means removing a package or containerized hazardous material from a transport vehicle.  It also includes the emptying of a bulk packaging, such as a CTMV after it has been delivered when the performed by the driver or in his/her presence.   This last part is critical.  If the driver is not present for the unloading of the vehicle, the activity does not meet the definition found at 49 CFR 171.8 of “Unloading incidental to movement” and therefore, the activity – though in all other ways similar to “Unloading incidental to movement” – is not subject to the HMR and the employees involved in unloading cannot be HazMat Employees.  Read on…

In example #1 above, the unloading of the non-bulk and bulk packagings from the semitrailer meets the definition of “Unloading incidental to movement” since the driver of the vehicle remains on-site during the process.  It is therefore subject to regulation under the HMR.  Any of Company A’s employees involved in the unloading of that vehicle, including direct supervisors of employees involved, meet the definition of a HazMat Employee.

Example #2 is also subject to the HMR since the unloading of a bulk packaging while the driver is present meets the definition of “Unloading incidental to movement”.  This is a bit more of a challenge for some companies since they argue that the driver is responsible for the unloading and their employees are only there to ensure company policies and procedures are followed.  No matter, any Company A employee involved in the unloading of a bulk packaging while the driver is present will meet the regulatory definition of a HazMat Employee.

Example #3 differs from #2 in that the railroad personnel detach the tank car from the train and leave it for Company A employees to unload after the railroad personnel have left the property.  This operation does not meet the definition of “Unloading incidental to movement” since no “carrier personnel” (ie. railroad personnel) are present during the unloading.  Therefore, the unloading is not subject to the HMR – though the regulations of OSHA and US EPA may apply – and the Company A employees involved in unloading the railroad tank car are not HazMat Employees.

A US DOT interpretation letter that formed the basis of this article can be found here.

This article looks at only three examples of HazMat transportation activities in the identification of HazMat Employees; you may likely have many more.  If you offer hazardous materials – including hazardous waste – for shipment, then it is likely you have operations that meet the definition of “Loading incidental to movement” which are subject to the HMR and involve HazMat Employees.

You can learn more about who is a HazMat Employee at your facility, what training is required, and receive the required training yourself all in the afternoon session of my one-day public training events held nationwide and year-round, see here for a schedule.  The morning session meets the US EPA training requirements for RCRA Personnel employed by Large Quantity Generators of hazardous waste identified at 40 CFR 265.16.  So, in one day you will meet the training requirements of both the US EPA and the US DOT and learn a lot more about these critical regulations.