If a shipper gives hazardous-materials cargo to a trucking company, and doesn't tell the carrier, to what extent is the trucker liable for damages if the contents are released through a crash or careless handling?
The answer is not simple, but the Dept. of Transportation (DOT) is working on making it clear — once and for all. No other transportation rules are as complex and as confusing as those governing hazardous materials. During the past several years, DOT has attempted to clarify haz-mat rulings — but each time the interpretations become mired in legal battles and hair-splitting arguments.
Currently, DOT regulations mandate punishment for anyone who “knowingly” violates haz-mat rules. The rules further state that a person acts knowingly when: “a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge.” Believe it or not, DOT has had to define what it means to be a “reasonable person,” as well as terms such as “reasonable care.” And the arguments didn't end there.
Some companies, including FedEx, complained that this put the onus on their workers to know what a suspicious or undeclared package looked like, and they weren't sure how to train people to do this. Carriers lack “essential criteria defining constructive knowledge of undeclared hazardous materials that would allow the carriers to design and implement a viable system for training their employees and for identifying and reporting discrepancies without being subjected to second-guessing after a shipment has been transported,” FedEx wrote to DOT officials.
The stakes are high. According to an attorney who represents carriers in haz-mat spills litigation, “during the past few years, the stakes have gone through the roof. Everyone is suing carriers after a spill, saying they should have known that such and such a cargo was hazardous. Sometimes the shipper doesn't tell us or a label isn't clear on what's inside or they're using a non-standard container. How are we supposed to know unless we ask specifically about each container — and that's impossible.”
In November, DOT is holding a public hearing on what a carrier can reasonably be expected to know about their cargo. Although the agenda is open, DOT suggests the following discussion points for the meeting:
The responsibilities of shippers to properly classify haz-mats, package and mark shipments, describe the material and provide placards.
The responsibilities of carriers to review shippers' documents, to inspect packaging and to determine if it is hazardous. Once determined that a package contains hazardous material, what should a carrier do to make sure that it is properly packaged, correctly labeled and currently described in shipping documents?
At what point does a “reasonable person” believe that a package contains hazardous materials, despite the lack of markings or the fact that the container gives no positive indication? This question of a threshold will be the most contentious, observers say.
What methods should be used to train personnel who prepare materials for shipment, and those who accept it, to recognize the potential presence of hazardous material?
“These are not easy questions to answer,” says one DOT official, “but our litigious society demands as much certainty as possible — and so does our environment.”