How Hazardous Material Cases differ from traditional Cargo Transport Trucking Cases?
Introduction: Most understand that by now you can not handle an interstate, or intrastate, trucking case like an auto accident case. Different rules and laws apply. Likewise, you can not treat a hazardous material commercial transport vehicle the same as you treat regular cargo commercial transport vehicles in commercial trucking cases. Transportation of hazardous materials cause unique safety concerns as the release of hazardous cargo may contaminate or injure those coming into contact with the substance, or result in fire, explosions, and the release of toxic fumes. Safety needs to be of utmost importance when transporting hazardous material.
What is classified as Hazardous Material?
Under 49 C.F.R. 171.8, hazardous material means a substance or material that is capable of
posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal Hazardous Materials transportation law (49 U.S.C. 5103). The term includes:
- hazardous substances
- hazardous wastes
- marine pollutants
- elevated temperature materials
- materials designated as hazardous in the Hazardous Materials Table (49 CFR 172.101).
Hazardous materials are broken down into nine different classes:
- Class 1 - Explosives
- Class 2 - Gases
- Class 3 - Flammable and Combustible Liquid
- Class 4 - Flammable Solid, Spontaneously Combustible Materials, and Dangerous when Wet Materials
- Class 5 - Oxidizing Substances and Organic Peroxides
- Class 6 - Poisonous (Toxic) and Infectious Substances
- Class 7 – Radioactive Material
- Class 8 - Corrosives
- Class 9 - Miscellaneous Dangerous Goods (such as hazardous wastes or marine pollutants).
Specific examples of hazardous materials are:
- cleaning compounds
- contaminated soils
- flammable liquids
- dry ice
- flammable paint
- compressed gases
- fire extinguishers
- fuel cells
- and among others
The more potentially dangerous the material to humans and the environment, the more restrictive the packaging requirements become (Packaging Group I being high danger, Packing Group II being moderate danger, and Packing Group III being low danger).
For a comparison: batteries, wet filled with acid fall under Packing Group III, while battery acid shipped in separate containers fall under Packing Group II.
Hazardous Materials Shipper/Carrier Responsibilities
According to the Federal Motor Carrier Safety Administration (FMCSA), hazardous material
shippers/carriers must follow the requirements of Part 177 ("Carriage by Highway'), as well as, the requirements contained in Parts 171 - 173, 178, and 180.
Requirements of note include having the proper:
- shipping name
- identification number
- hazard warning label
- Shipping papers
- Emergency response information
- Emergency response telephone number
- Blocking and bracing
- Security plan and incident reporting
- Hazardous material employees must receive specific Hazardous Materials Training.
Before a hazardous material employee performs any function subject to the Hazardous Materials Regulations, they must be trained, tested, and certified by the hazardous materials employer.
After the initial hazardous material employee training, recurrent training is required once every three years.
[A hazardous material employee is an individual that is employed on a full-time, part-time, or temporary basis by a hazardous material employer, or, who is self-employed, and during the course of employment, performs any function subject to the Hazardous Materials Regulations (JJ Keller: Hazmat Transportation).]
Some of the functions that are subject to the Hazardous Materials Regulations include:
the act of loading, unloading, or handling of hazardous materials; the design, manufacture, fabrication, inspection, mark, maintenance, repair, recondition, or testing a packing, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous materials in commerce; the preparation of the hazardous materials for transportation; or operating a hazardous material commercial transport vehicle.
The training required involves general awareness and familiarization intended to raise the hazardous materials employees' understanding of the hazardous materials, as well as, the purpose and meaning of the communication level required.
Function-specific training: Function-specific training is intended to teach the necessary knowledge, skills, and abilities for an individual's job function.
Safety training: Safety training provides information concerning the hazards posed by materials in the workplace and personal protection measures.
Security training: Security training is required and must include an awareness of security risks associated with hazardous materials transportation and methods designed to enhance transportation security.
FMCSA: How to Comply with Federal Hazardous Materials Regulations
Many times the investigating law enforcement officer will fail to check for additional requirements that the FMCSA has instituted for the transportation of hazardous materials.
It becomes the duty of the plaintiff lawyer to use all available discovery to ascertain compliance or non-compliance with the additional regulations concerning transportation of hazardous materials.
Hazardous Material Financial Responsibility and Liability Coverage.
- Transportation of hazardous materials insurance policies cover liability for:
- loading and unloading cargo
- in-transit coverage
- site pollution clean-up operations
- on-going contamination.
Most regular cargo commercial transport vehicles are required to have a minimum of about $750,000 in liability coverage, while hazardous material commercial transport vehicles will have insurance policy limits between $1,000,000 and $5,000,000 in liability coverage.
For example, gasoline is listed as hazardous material in the table (49 CFR 172.101. §387.9), which requires for-hire and private motor carriers transporting any quantity of oil in interstate, intrastate, or foreign commerce to have a minimum of $1,000,000 of financial responsibility and liability coverage.
On the other hand, liquefied petroleum gas (“LPG") is a flammable compressed gas. All transportation of LPG in containment systems with capacities in excess of 3,500 gallons require $5,000,000 financial responsibility and liability coverage.
Interstate and foreign commerce movements of LPG in containment systems that do not exceed of 3,500 gallons require a minimum of $1,000,000 financial responsibility coverage.
For a carrier operating a multi-compartment cargo tank transporting hazardous materials, where each compartment is less than 3,500 gallon capacity, but the total capacity of all components exceed 3,500 gallons capacity, $5,000,000 of insurance is required.
The $5,000,000 represents the amount of coverage for hazardous substances transported in "cargo tanks, portable tanks, or hopper-type vehicles with capacities in excess of 3,500 gallons.” The transporting vehicle must have a "gross vehicle weight rating of 10,000 or more pounds."
49 CFR §171.8 defines a "cargo tank motor vehicle" as a motor vehicle with one or more cargo tanks permanently attached to or forming an integral part of the motor vehicle.
Additionally, the use of the plural to describe the tanks, and the singular to describe the truck, implies that the standard is met if several tanks with a combined capacity of 3,500 gallons are transported on the same vehicle. (FMCSA: §387.9 Guidance Q & A).
Common Hazardous Material Transport Crashes
For hazardous material transportation, some of the most serious crash types are cargo spills and rollovers due to mobile communications.
Due to the extreme amount of damage caused by cargo spills, each vehicle should have a fully equipped spill/containment kit.
Each employee should be aware of the kit and appropriately trained on how to safely use it in the event of a spill.
The spill kit should be fully supplied with absorbent material, appropriate gloves, eye protection, and non-metal tools (such as shovel and containers).
Depending upon which hazardous materials are being loaded or unloaded and the type of trailer or container being used, there are specific procedures on how to load or unload the hazardous materials.
For example: loading and unloading personnel must always remain within 25 feet and have an unobstructed view of the vehicle.
According to the Zurich Hazardous Material Transport Safety Guide, "rollovers are caused primarily by driver actions.” Major contributing factors to rollover crashes include:
- A driver's fitness for duty
- Health awareness
- Safety culture.
The employer's poor planning of routes, scheduling, dispatch, training, hiring, and overall operations can also be contributing factors. With changing conditions around them increase the odds of a mishap and control of their vehicle diminishes.
Truck Drivers and Mobile Phones
The FMCSA issued a rule regarding the use of hand-held mobile devices applies certain restrictions on their use by drivers of commercial motor vehicles.
The rule prohibits a CMV driver from holding a mobile device to make a call, or dialing by pressing more than a single button.
CMV drivers who use a mobile phone while driving can only use a hands-free phone located in close proximity.
The use of hand-held mobile telephone means: using at least one hand to hold a mobile phone to make a call, dialing a mobile phone by pressing more than a single button, or reaching for a mobile phone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt.
Establishing Shipper/Carrier Liability
The first way to establish shipper/carrier liability is through negligence.
Negligence may be found if a party violates its duty of care. The general rule is that when the shipper loads the cargo, the carrier is liable for open and obvious loading defects, while the shipper remains liable for latent and concealed loading defects.
In State v. Southern Refrigerated Transport, Inc, 348 S.W.2d 241 (Tex. App 1961), the court held the carrier liable for the value of the fish killed when a truck carrying a toxic fungicide overturned, spilling the chemical into the nearby river. The court noted that the carrier is vicariously liable for the negligence of its driver when the driver had fallen asleep at the wheel and was not using proper care.
Similarly, in Triche v. Overnite Transp. Co., 1996 U.S. Dist. LEXIS 14156 (E.D. La. 1996), the carrier was held liable for injuries sustained by a motorist splattered with poisonous liquid that had leaked from the carrier's trailer. The court found that the carrier was negligent for failing to adequately secure the hazardous cargo.
In some cases, joint liability can be established for both shipper and carrier.
For example, in Symington v. Great W. Trucking Co., F. Supp. 1278 (S.D. Iowa 1987), liability for the clean-up costs, of a toxic chemicals spill at a truck stop, was allocated equally between the shipper and carrier where each bore some degree of fault.
In this case, the shipper had improperly loaded the barrels of the toxic chemical onto the carrier's truck, and failed to properly warn the carrier's driver of the harmful nature of the chemical cargo. The shipper's failure to warn was cited as an alternative basis for finding negligence and allocating liability.
The carrier was held jointly liable because it continued driving after discovering the leaking cargo, and parked the truck in front of the plaintiff's business, instead of a more remote area.
The second way to establish shipper/carrier liability is through negligence per se.
A violation of the Hazardous Materials Transportation Act or the Department of Transportation's (“DOT") regulations can establish carrier and shipper negligence. The DOT regulations on transportation of hazardous materials typically place responsibility on the carrier for proper handling and transportation from the time it receives the goods until delivery.
These responsibilities include:
- proper care of the hazardous materials
- maintenance and inspection of appropriate equipment
- and observance of safety regulations such as observing speed limits, not leaving materials unattended during loading or unloading
- posting of appropriate signs
- adhering to proper emergency procedures.
Other statutes, rules, and ordinances place on the carrier additional legal responsibilities governing the possession and transportation of hazardous materials.
For example, a regulation under the Resource Conservation and Recovery Act requires a transporter to clean up hazardous waste that is spilled during transportation.
Many DOT regulations are also applicable to shippers. The regulations usually specify the responsibilities that shippers must complete before delivering the goods to the carrier, such as:
- Proper labeling
- Proper Documentation
- Proper packaging of the hazardous materials.
For example, in Poliskie Line Oceaniczne v. Hooker Chemical Corp., 499 F. Supp. 94 (S.D.N.Y 1980), the shipper was found liable under the negligence per se theory for improperly loading its drums of corrosive material into the plaintiff's storage container, in violation of applicable regulations.
These hazardous material transportation cases are difficult and require the plaintiff's attorney to become very familiar with all special regulations, both state and federal, that set specific rules on this type of trucking.
Please note that most states have adopted some form of the rules on transportation of hazardous material outline in the Federal Motor Carrier Safety Regulations.
Discovery by Plaintiff's Lawyers often reveal a plethora of code violations and can give rise to adding an additional claim for punitive damages.
Research all applicable regulations before starting discovery to maximize the recovery for your client.
Bernard F. Walsh Personal Injury Legal Issues