Written on: May 1, 2023 by Nicholas Georges
An aerosol product is used to deliver a wide variety of products, which means they are subject to a number of government laws and regulations. The aerosol industry constantly strives to create new products that improve the daily lives of consumers and workers while still complying with existing laws and regulations. Unfortunately, regulations can sometimes stifle the industry’s ability to innovate and bring new products to market. People typically associate regulations with government agencies such as the California Air Resources Board (CARB), the U.S. Food & Drug Administration (FDA) and the U.S. Environmental Protection Agency (EPA); however, the U.S. Dept. of Transportation (DOT) Pipeline & Hazardous Safety Administration (PHMSA) has also promulgated certain requirements for aerosol products.
PHMSA is responsible for developing and enforcing the regulations that ensure the safe transport of hazardous materials and products. Aerosol productsi are always subject to PHMSA’s requirements due to their pressurized natureii and can be assigned subsidiary hazards depending on the formulation. For this reason, an aerosol containeriii needs to meet rigorous material, design, construction, manufacturing and pressure testing requirements, and the shipping of aerosol products has additional requirements.
There are certain situations in which a company’s manufacturing process or product does not align with PHMSA’s regulations, including shipping a gas-only aerosol product, shipping an aerosol product in a container that doesn’t meet the wall thickness requirement, or utilizing an alternative technology to replace the water bath test. In these (and other) circumstances, a company can obtain a special permit from PHMSA that allows companies to still ship hazardous materials.iv
To receive a special permit, an application must be submitted at least 120 days before the requested effective date, provide a detailed descriptionv of the proposal and justify that the proposal is at least as protective as the regulations or show an analysis that shipping is safe if a certain scenario is not addressed by existing regulations.
While the timeline of PHMSA’s review of a special permit application will vary, it will ultimately either issue or deny the proposal a special permit. If it’s denied, the applicant can petition for reconsideration within 20 days of receipt of the decision and provide additional information needed to support the request.
When a special permit is granted, a company using the special permit must meet specific requirements documented within, such as special markings, providing additional documentation and training. When first issued, a special permit will not be effective for more than two years. Applicationsvi for renewing a special permit must be submitted at least 60 days prior to expiration and may be renewed for successive periods, but not more than four years. If a renewal does not occur, a company must reapply for a new special permit.
Federal hazardous materials transportation law requiresvii PHMSA to publish a notice in the Federal Register that an application for a new special permit or a modification to an existing special permit has been filed (though no confidential information is released) and gives the public an opportunity to inspect the safety analysis and provide comment. PHMSA also maintains an online toolviii that allows the public to search for special permits by number, company name or State.
While transporting aerosol products in the U.S. is highly regulated, the special permit process allows companies to deliver new and more sustainable products to the public more quickly and with an equivalent level of safety than the standard rulemaking process.
For more information on shipping aerosol products in the U.S., please contact me at ngeorges@thehcpa.org. SPRAY
i As defined by the 49 CFR § 171.8
ii Aerosols are categorized in accordance with the 49 CFR § 173.115(l)
iii For example, the requirements for a 2P container can be found at the 49 CFR § 178.33
iv 49 CFR Part 107 Subpart B
v Requirements for the description can be found at 49 CFR § 107.105
vi Regulations pertaining to an application renewal are found in the 49 CFR § 107.109
vii 49 USC 5117(b)
viii link
