Article Summary
Using the trail of breadcrumbs from Hansel and Gretel as a framing device, this article, from Bob Richard, Vice President at HazMat Safety Consulting, argues that hazmat compliance failures are rarely caused by a single mistake — they’re usually the end point of a chain of small clues, documentation gaps, inconsistencies, and procedural oversights spread across multiple parties. It centers on PHMSA’s Offeror Rule (HM-223) under the Hazardous Materials Regulations (HMR), which defines an “offeror” as anyone performing or responsible for pre-transportation functions, or anyone tendering hazardous materials to a carrier, and explains why that definition matters: a 1988 PHMSA interpretation (55 FR 6761) established that multiple responsible parties can carry joint and several liability for offeror functions, and a 1998 interpretation (63 FR 30411) defines “constructive knowledge” as what a reasonable person exercising reasonable care would have known, meaning parties can’t simply turn a blind eye to incorrect information passed along the chain. The article reframes enforcement’s real goal as improving safety rather than collecting penalties, and offers a practical “breadcrumb approach” for hazmat safety teams: document everything, trace processes backwards when something goes wrong, and focus on root causes instead of the first visible error. It closes by positioning HazMat Safety Consulting’s proactive audits as a way to find these vulnerabilities before they turn into violations.
Following the Breadcrumbs to Enhance Hazmat Safety
Insights from Bob Richard, Vice President at HazMat Safety Consulting
If you’ve ever read the fairy tale of Hansel and Gretel, you’ll remember the children dropping breadcrumbs to find their way out of the forest. It’s a simple image—but one that stuck with me throughout my career in hazardous materials enforcement.
When I was overseeing enforcement staff at PHMSA, I often encouraged investigators to “follow the breadcrumbs.” In our world, those breadcrumbs weren’t pieces of bread—they were small clues, bits of documentation, inconsistencies, or procedural gaps that, when traced carefully, could lead us to the root cause of a hazmat incident or compliance failure.
Following the breadcrumbs means connecting seemingly minor details into a bigger picture. It’s less about playing “gotcha” and more about understanding what went wrong, why it happened, and how to prevent it from happening again. My philosophy was simple: find problems and fix them.
Breadcrumbs and the “Offeror Rule”
The concept of breadcrumb-tracing ties directly to one of PHMSA’s key regulations: the “Offeror Rule” (HM-223). This rule is part of the Hazardous Materials Regulations (HMR)—the U.S. Department of Transportation’s set of rules governing how hazardous materials are classified, packaged, marked, labeled, documented, and transported safely in commerce.
Under the Offeror Rule, an offeror is defined as:
- Any person performing, or responsible for performing, a pre-transportation function under the HMR for a hazardous material, or
- Any person who tenders or makes the hazardous material available to a carrier for transportation in commerce.
It also clarified that while offerors and carriers can rely on information provided by others, they can’t simply turn a blind eye. If they know—or should know—that information is incorrect, they can be held accountable.
This is where enforcement becomes more nuanced. The preamble of the rule referred to a formal interpretation published by RSPA (the predecessor agency of PHMSA) in 1988 (55 FR 6761) that stated that, in the situation where more than one person is responsible for performing offeror functions, ‘‘each such person may be held jointly and severally liable for all or some of the ‘offeror’ responsibilities under the HMR.’’
As such under the HMR each person is responsible for their own violations:
- Preparing a shipment improperly
- Accepting non-compliant shipments and reoffering them
- Failing to handle or transport hazmat according to the HMR
In short: each entity that fails to comply will be held responsible. If a carrier accepts a non-compliant shipment, their liability is based on their own acceptance and whether they had constructive knowledge that the shipment was not compliant.
In other words, when a carrier accepts and transports a shipment of hazardous material that is not properly prepared for transportation in commerce, with actual or constructive knowledge of the noncompliance, the carrier’s liability is based on its own improper acceptance and transportation of that shipment—not the violation of the person who improperly prepared the shipment.
The application of ‘‘constructive knowledge’’—when ‘‘a reasonable person acting in the circumstances and exercising reasonable care would have * * * actual knowledge of the facts giving rise to the violation’’ of the law or the HMR—is set forth in RSPA’s prior interpretation published in the Federal Register, 63 FR 30411, 30412 (June 4, 1998) – 98-14561.pdf
Why This Matters in Enforcement
When tracing the cause of a hazmat violation, it’s rarely just one person or company at fault. More often, it’s a chain of decisions, misunderstandings, or oversights across multiple parties.
Following the breadcrumbs allows investigators to:
- Identify all contributing factors
- Understand the full scope of the issue
- Target corrections at the right places in the process
It’s about continuous process improvement—fixing the root cause, not just the symptoms. Sometimes that means issuing penalties when necessary to deter dangerous behavior. Other times, it means focusing on education and partnership to prevent repeat mistakes.
Punishment vs. Prevention
In my view, not every error deserves a penalty—especially when there’s no malicious intent and the party involved is committed to making improvements. The ultimate goal of enforcement shouldn’t be to collect fines; it should be to enhance safety.
By working together—industry and regulators—can make meaningful process changes that protect people, property, and the environment.
Pro Tip: The “Breadcrumb” Approach for Hazmat Safety Teams
- Document Everything
Keep complete and accurate records of pre-transportation steps, approvals, and hazard classifications. Missing details are missing breadcrumbs. - Trace the Process Backwards
If something goes wrong, retrace the entire shipping process—from packaging to carrier acceptance—to find where the issue started. - Focus on Root Causes, Not Just Symptoms
Correct the underlying processes or training gaps that led to the mistake. Penalties can stop a bad action once, but prevention keeps it from happening again.
Don’t Leave Your Compliance to Chance
Hazmat violations rarely happen in isolation. They’re the result of interconnected decisions, processes, and oversights that create a trail of risk throughout your operation.
The question isn’t whether PHMSA will follow the breadcrumbs in your facility—it’s whether you’ll find them first.
At HazMat Safety Consulting, we use the same investigative approach that Bob and his team employed at PHMSA, but we’re working for you, not against you. Our compliance audits trace every breadcrumb in your hazmat operations—from initial classification through final carrier acceptance—to identify vulnerabilities before they become violations.
Remember: As Bob Richard learned from years of enforcement, the breadcrumbs always tell a story. Make sure yours has a happy ending.
Questions about your specific situation? Book a call with our expert today!
FAQ
Q: What is PHMSA’s Offeror Rule (HM-223)?
A: HM-223, part of the Hazardous Materials Regulations (HMR), defines an “offeror” as any person performing or responsible for pre-transportation functions under the HMR, or any person tendering hazardous materials to a carrier. It clarifies that each entity in that chain remains accountable for its own violations, including improper shipment preparation, accepting and re-offering non-compliant shipments, or improper handling or transportation.
Q: What does “joint and several liability” mean for hazmat offerors?
A: Under a 1988 PHMSA interpretation (55 FR 6761), when multiple parties are responsible for offeror functions on a shipment, each one can be held independently liable for compliance failures. That means a party can’t avoid responsibility just because another party in the chain also had a role in the violation.
Q: What is “constructive knowledge” in hazmat enforcement?
A: A 1998 PHMSA interpretation (63 FR 30411) defines constructive knowledge as circumstances where a reasonable person, acting with reasonable care, would have known the facts giving rise to a violation. In practice, this means a party can’t claim ignorance if reasonable diligence would have uncovered the problem.
Q: What is the “breadcrumb approach” to hazmat safety?
A: It’s a three-part practice recommended for hazmat safety teams: document everything so there’s a trail to follow, trace processes backwards when an issue surfaces instead of stopping at the first visible cause, and focus on identifying root causes rather than treating symptoms.
Q: What is the goal of hazmat enforcement, according to the article?
A: The article argues enforcement’s real objective should be enhancing safety, not simply collecting penalties, and that industry and regulators are better served by a collaborative approach to identifying and fixing the chain of decisions and oversights that lead to violations.
Q: How can HazMat Safety Consulting help before a violation happens?
A: Through proactive compliance audits designed to surface documentation gaps, inconsistencies, and procedural vulnerabilities across an organization’s hazmat processes before they escalate into a violation or incident.