August 3, 2020

Volume X, Number 216

July 31, 2020

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DOT to Exercise Enforcement Discretion Regarding Noncompliance with Certain Hazmat Training Requirements

As the Coronavirus Disease 2019 (COVID-19) outbreak continues to cause unprecedented disruptions to normal business practices, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) has indicated that for the next 90 days it will not be taking enforcement action against any offeror or carrier of hazardous materials (hazmat) for failure to comply with the recurrent DOT hazmat training requirements of 49 CFR § 172.704(c)(2). [1] The enforcement discretion is intended to minimize disruptions in the supply-chain and will be exercised by the Federal Aviation Administration (FAA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (FRA), PHMSA, and the United States Coast Guard (USCG).

Under the DOT hazardous materials regulations (HMR), hazmat employersi.e., persons/companies that use one or more employees in connection with transporting hazmats in commerce, causing hazmats to be transported or shipped in commerce, or representing, marking, selling, certifying, offering, manufacturing, etc., packaging as qualified for use in transporting hazmats, must provide DOT hazmat training to their hazmat employees (see 49 CFR § 171.8 for full definitions of hazmat employer and hazmat employee). The training obligation also extends to certain self-employed individuals and government workers.

The details of the DOT hazmat training requirements are set forth in 49 CFR 172.700-704. Each hazmat employee must receive four (or, in some instances, five) types of training: (1) general awareness; (2) function-specific; (3) safety; (4) security awareness; and (5) in-depth security training (if employer is subject to DOT security plan obligation). This training must be completed prior to the person performing any job functions that qualify the individual as a hazmat employee (unless performed under the supervision of someone who has completed training and the training is completed within 90 days). In addition, each hazmat employee must be re-trained in all four (or five) types of hazmat training every three years. This so-called recurrent training is the subject of DOT’s enforcement discretion.

While DOT has indicated that for the next 90 days (until June 23, 2020) it will not take enforcement action against any hazmat employer who is unable to provide recurrent training to their hazmat employees, this enforcement discretion does not cover noncompliance with the initial DOT hazmat training obligation. This means that employers are not being provided leeway to assign employees to perform hazmat employee duties who have not previously satisfied the initial DOT hazmat training requirements. 

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 87


About this Author

Trent Doyle Environmental Compliance Attorney Keller Heckman Law Firm

Trent M. Doyle advises clients on all types of environmental matters, including compliance with U.S. and international chemical control laws, transportation of dangerous goods regulations, hazardous materials regulations, and community right-to-know laws. He also has special expertise in environmental permitting.

Mr. Doyle counsels clients on a wide spectrum of environmental and transportation matters, including those pertaining to chemical control, facility permitting (e.g., Clean Air Act, Clean Water Act), hazardous materials shipping...

Taylor D. Johnson ASSOCIATE Keller Heckman California's Proposition 65 Chemical Control Environmental Litigation Transportation Workplace Safety and Health

Taylor Johnson is an environmental lawyer specializing in the area of environmental regulation of products, including chemical control, pesticides, energy efficiency regulation, and importantly, domestic and international transportation of hazardous materials. Mr. Johnson also advises clients on community-right-to-know laws, Proposition 65, occupational safety and health matters, and supports a wide variety of commercial tort and other litigation issues.

Mr. Johnson has special expertise in the area of hazardous materials transport, including enforcement defense and compliance counseling. Mr. Johnson helps companies secure competent authority approvals, special permits, and letters of interpretation from regulatory authorities around the world. He has also prepared successful petitions to PHMSA on behalf of shippers seeking regulatory relief.