NEW LAWS: Update on Changes to the Transportation of Dangerous Goods Laws
It’s an unfortunate reality that changes to environmental, workplace safety and other regulatory laws are often driven by tragedies. For example, the overhaul of Ontario’s OHS system was driven by the death of four workers in a scaffolding collapse. Similarly, recent changes to the laws on transporting hazardous substances are the result of the tragedy in Lac-Mégantic, Québec on July 6, 2013, in which a train carrying 72 cars of crude oil slipped downhill, derailed and exploded. The explosion and resulting fires killed 47 people, caused massive destruction and resulted in an estimated 100,000 litres of oil being dumped into the Chaudière River. These changes are being made piecemeal and through different means. So here’s an overview of the key changes to seven areas of the law.
Sources of the Changes Here’s a list of and hyperlinks to the sources of the changes to the TDGA and TDG Regulations discussed in this article:
Sources of the Changes
Here’s a list of and hyperlinks to the sources of the changes to the TDGA and TDG Regulations discussed in this article:
DEFINING OUR TERMS
The Lac-Mégantic incident spurred changes to not only the transportation of dangerous goods laws but also to related laws, such as the Railway Safety Act and regulations. This article covers updates to the dangerous goods laws only.
HOW CHANGES ARE MADE
The key law being changed in the wake of Lac-Mégantic is the Consolidated Transportation of Dangerous Goods Regulations (TDG Regulations) under the federal Transportation of Dangerous Goods Act (TDGA). Every jurisdiction has its own transportation of dangerous goods acts and regulations, which generally incorporate the requirements contained in the TDGA and TDG Regulations. So changes in the federal laws are essentially adopted by the provinces and territories.
Transport Canada is the source of the changes to these laws. It has implemented such changes in two ways:
Protective Directions. In response to Lac-Mégantic, the Minister of Transport issued several “Protective Directions.” Sec. 32 of the TDGA says that if the Minister is satisfied that a protective direction is necessary to deal with an emergency that involves danger to public safety and that can’t be effectively dealt with under any other provision of the law, the Minister may direct a person engaged in importing, offering for transport, handling or transporting dangerous goods, or supplying or importing standardized means of containment to cease that activity or to conduct other activities to reduce any danger to public safety. Protective Directions remain in effect until the Minister is satisfied that they’re no longer needed. Thus, Protective Directions enable the government to quickly impose requirements to address a dangerous goods emergency impacting public safety. The Protective Directions related to the Lac-Mégantic incident were issued in the months immediately after the derailment as information about its causes and impact became available.
Amendments to the TDG Regulations. For most of the changes, Transport Canada has made amendments to the TDG Regulations. Proposed changes are usually released first for public comment; revised and final amendments are later published in the Canada Gazette. The changes made through regulation amendments are more involved and have a broader scope than those made via Protective Directions. And in many cases, changes originally made through Protective Directions were later formalized in amendments to the TDG Regulations. These amendments took effect in July 2014, with a six-month grace period for compliance for most requirements.
7 KEY AREAS IMPACTED BY CHANGES
The changes implemented through directions and amendments impact seven key areas under the TDG Regulations, including:
One of the issues raised by the Lac-Mégantic incident was the town’s lack of information as to the nature and types of dangerous goods passing through it. So the Minister of Transport issued a protective direction that requires any Canadian Class 1 railway company that transports dangerous goods to provide municipalities with yearly aggregate information, presented by quarter, on the nature and volume of dangerous goods it transports by rail through that municipality. Any person who transports dangerous goods by rail that isn’t a Canadian Class 1 railway company must provide municipalities with yearly aggregate information on the nature and volume of dangerous goods transported through that municipality and notify municipalities of any significant changes to that information, as soon as possible.
The TDG regulations require an emergency response assistance plan (ERAP) when transporting certain dangerous goods under designated circumstances. ERAPs assist municipalities and local emergency responders by giving them critical information, around the clock technical experts, and specially trained and equipped emergency response personnel at the scene of an incident.
Transport Canada issued Protective Direction No. 33 to require shippers to develop ERAPs for crude oil, gasoline, diesel, aviation fuel and ethanol. An ERAP is required when even just a single tank car contains one of these designated flammable liquids. ERAPs had to be submitted to Transport Canada for approval within 150 days of the issuance of the Direction, which was on April 23, 2014.
Insider Says: For more information on ERAPs, see “Hazardous Substances: How to Comply with the TDGA Emergency Response Plan Requirements.”
Another issued raised by this tragedy was the fact that the oil being transported by the train that derailed was misclassified. In response, Protective Direction No. 31 requires any person who imports or offers crude oil for transport to immediately classify the crude oil if it hasn’t been done since July 7, 2013. Classification testing must follow the requirements of the TDGA and TDG Regulations, specifically Secs. 2.18 and 2.19 of the TDG Regulations, which contain the requirements for testing flammable liquids such as crude oil. Until such testing has been completed, any person who imports, handles, offers for transport or transports crude oil classified as UN 1267 or UN 1993 by rail must ship all such oil as a Class 3 Flammable Liquid Packing Group (PG) I and meet the requirements established in the TDGA and TDG Regulations regarding UN 1267 or UN 1993 classified as PG I.
Once testing is complete, the above persons must send the Safety Data Sheet (SDS) to the Canadian Transport Emergency Centre (CANUTEC). And after testing, any person who imports or offers for transport UN 1267 or UN 1993 must immediately provide an SDS for the tested product to CANUTEC.
The effectiveness of DOT-111 tank cars in a derailment became a major concern post-incident. The DOT-111 is designated to carry liquids. Although all tank cars share certain common design features, not all DOT-111 tank cars are built the same. Transport Canada imposed new standards for these tank cars, first in Protective Direction No. 34 and then in amendments to the TDG Regulations. Transport Canada also issued another Protective Direction requiring the immediate phase-out of the least crash-resistant tank cars, that is, those that aren’t equipped with continuous bottom reinforcement and so pose a much higher risk of failure in a derailment.
The new standard for DOT-111 tank cars includes requirements for half head shields, increased thickness of the shell and heads, and top-fitting protection. All newly manufactured tank cars built for petroleum crude oil service must comply with the new standard. (See the diagram at the end for an illustration of the new requirements.)
The TDG Regulations were also amended to add requirements for other kinds of tank cars, including:
- Two new designs for cryogenic tank cars;
- A new design for tank cars carrying liquefied natural gas or ethylene refrigerated liquid;
- A requirement for stub sill inspection;
- Additional safety features on tank cars carrying between 120,000 to 130,000 kg of dangerous goods; and
- Increased requirements regarding pressure relief valves on aluminum tank cars to reduce non-accidental releases of dangerous goods, reducing a worker’s risk of being exposed to the dangerous goods.
In addition to the tank car changes discussed above, the TDG Regulations were also amended to address other means of containment, including:
Small means of containment. The CGSB 43.150 standard for small means of containment was replaced with the new TP14850 standard. TP14850 is harmonized with the 16th revised edition of the UN Recommendations and covers the manufacture and use of a wide variety of small means of containment for the transport of dangerous goods. It also addresses certain “special cases” that had been previously covered through equivalency certificates, including:
- Containers for dangerous goods transported for disposal from collection facilities serving the general public;
- Alternative combinations packaging also known as “lab packs”; and
- Containers used to apply tar as sealant for roads and structures.
Insider Says: Because TP14850 was developed as a Transport Canada publication, it’s available to the public for free in electronic form or at a nominal charge as a paper document.
Portable tanks. The TDG Regulations now incorporate CSA Standard B625-08, “Portable tanks for the transport of dangerous goods,” which establishes requirements for the selection, use and periodic testing of UN portable tanks in Canada. The requirements of CSA B625 are harmonized with the UN Recommendations.
The regulations also incorporate CSA Standard B626-09, “Portable tank specification TC 44,” thus introducing the specification for TC 44 portable tanks for transport of diesel fuel by road vehicle. The standard provides the requirements for design and manufacture that are specific to TC 44 tanks and makes reference to the CSA B620 standard for the general requirements applicable to all highway and TC portable tank specifications.
Pressure receptacles. The amended TDG Regulations now incorporate two CSA standards on UN cylinders, tubes and multiple element gas containers for the transport of gases in Class 2, which the UN refers to as “pressure receptacles”:
- CSA Standard B341-09, “UN pressure receptacles and multiple-element gas containers for the transport of dangerous goods”; and
- CSA Standard B342-09, “Selection and use of UN pressure receptacles and multiple-element gas containers for the transport of dangerous goods, Class 2.”
These two standards establish requirements in Canada for pressure receptacles and are harmonized with the UN Recommendations. The adoption of these CSA standards also addresses issues between Canada and the US on mutual recognition of regulatory approvals for UN pressure receptacles. That is, CSA B342 recognizes UN pressure receptacles bearing the country of approval mark “USA,” applied in accordance with the 49 CFR, for use in Canada; UN cylinders with the “CAN” country of approval mark are recognized for use in the US.
Insider Says: For more information on means of containment, see “Hazardous Substances: Complying with TDGA Containment Requirements.”
The TDGA divides dangerous goods into nine classes according to the type of danger they present. Consigners—that is, the person with possession of the dangerous goods before they’re transported—are responsible for, among other things, classifying dangerous goods using classification tests and selecting the proper containers for their transport.
Amendments to the TDG Regulations now require consigners to keep records for up to five years on the classification of dangerous goods and be prepared to present proof of classification to the Minister upon reasonable notice. Proof of classification can be:
- A test report;
- A lab report;
- A document that explains how the dangerous goods were classified; or
- An SDS as long as it’s accompanied by an explanation, under the heading “Transportation Information,” that describes how the dangerous goods were classified.
A proof of classification must include the following information:
- The date on which the dangerous goods were classified;
- If applicable, the technical name of the dangerous goods;
- The classification of the dangerous goods; and
- If applicable, the classification method used under this Part or under Chapter 2 of the UN Recommendations.
In addition, as of July 15, 2015, a shipping document must include, after the information required under Sec. 3.5, one of the following certifications:
- “I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name, are properly classified and packaged, have dangerous goods safety marks properly affixed or displayed on them, and are in all respects in proper condition for transport according to the Transportation of Dangerous Goods Regulations.”;
- The certification set out in Sec. 172.204 of 49 CFR;
- The certification set out in Sec. 126.96.36.199 of the ICAO Technical Instructions;
- The certification set out in Sec. 188.8.131.52 of the IMDG Code; or
- The certification set out in Sec. 184.108.40.206 of the UN Recommendations.
This certification must be made by the consignor or an individual acting on the consignor’s behalf and must state that individual’s name. The certification’s purpose is to provide inspectors and emergency responders with the name of the individual who prepared the consignment should they need information about the dangerous goods offered for transport in a timely manner in the case of an incident or for enforcement purposes.
Insider Says: For more on the documents required by the TDG Regulations, see “Hazardous Substances: How to Comply with TDGA Documentation Requirements.”
The TDG Regulations require dangerous goods safety marks such as labels, placards, signs and marks to be displayed on a means of containment containing dangerous goods in transport. The dangerous goods safety marks identify the presence of the dangerous goods and the nature of the risk they pose. The regulations were amended to clarify the existing requirements for dangerous goods safety marks and introduce new marks.
Overpacks and consolidation bins. The TDG Regulations now include a definition for “overpack,” along with new provisions for the labelling and marking requirements of an overpack. Because the concept of “overpack” wasn’t recognized before, an overpack transiting to or through Canada was considered to be a large means of containment. And because an overpack wasn’t a standardized means of containment, it wasn’t permitted for use in the transportation of dangerous goods, creating a gap in the TDG Regulations and causing enforcement problems. The TDG Regulations on this issue are now harmonized with the UN Recommendations, the International Civil Aviation Organization (ICAO) Technical Instructions, the International Maritime Dangerous Goods Code and the requirements of 49 CFR in the US.
An “overpack” is now defined in the TDG Regulations as an enclosure that’s used by a single consignor to consolidate one or more small means of containment for ease of handling but that isn’t a minimum required means of containment, such as a disposable box, crate or bin in which one or more small means of containment are placed. New Sec. 4.10.1 spells out the safety marks that must be displayed on an overpack.
A definition was also added for “consolidation bin,” a container for use in a road vehicle in which items from many shippers are grouped together for transport. The regulations now allow for the addition or removal of items from a consolidation bin during transport unlike an overpack, which must remain intact during the entire transportation process. Sec. 4.10.2 spells out the safety marks that must be displayed on a consolidation bin.
New placard scheme. The amendments introduce a change from requiring the display of placards only when a certain quantity of dangerous goods is present to requiring the display of safety marks for any quantity of dangerous goods. For example, under the old regulations, if a shipment of dangerous goods was in a quantity that required placards, a driver had to remove the placards when the remaining quantity of dangerous goods no longer required them. Under the amended TDG Regulations, the same driver may retain the placards until the last delivery is completed and the vehicle no longer contains any of the dangerous goods indicated by the placard. These amendments align the regulations with 49 CFR and are helpful to emergency personnel and inspectors in both Canada and the US.
Note that the amendments exempt some dangerous goods from the placarding requirements of Sec. 4.15. To clarify the requirements for the 500 kg exemption, new placarding requirements replace this section in its entirety, including the table. The new Sec. 4.15 requires the primary class placard for each class of dangerous goods to be affixed on a large means of containment, such as a truck or rail car. And in Sec. 4.16.1, some dangerous goods are exempted from this requirement. These new requirements are also fully harmonized with 49 CFR in the US regulations.
In addition, the requirements for the display of the DANGER placard are in a new Sec. 4.16. Because the US and Canada are the only two countries that include a DANGER placard in their respective regulations and trade between the two countries is substantial, the requirements in Sec. 4.16 are harmonized with the requirements in 49 CFR.
Lastly, Sec. 4.18 of the previous TDG Regulations allowed a mixed load of gases to be identified by the DANGER placard, with the most dangerous of the gases identified by the appropriate class placard. The placarding options created various possibilities for compliance, which was confusing for first responders. These options have been removed in the new placarding scheme.
New safety marks. The amended TDG Regulations introduce new dangerous goods safety marks for:
- Dangerous goods included in Class 5.2, Organic Peroxides;
- Marine pollutants; and
- Dangerous goods offered for transport under the limited quantity exemption.
These new safety marks have already been introduced in the UN Recommendations and 49 CFR and facilitate movement of dangerous goods transported under the IMDG Code, the ICAO Technical Instructions and 49 CFR. A transitional period was included to allow the previous limited quantity marking to be used until Dec. 31, 2020, so that stakeholders can liquidate their pre-marked stock.
Removal of safety marks. The amendments address when dangerous goods safety marks should be removed. The determination of when to change or remove safety marks used to be left to the person responsible for the means of containment. The amended TDG Regulations now specify that safety marks can remain until the danger indicated by the dangerous goods safety marks is no longer present.
For companies engaged in any way in the transportation of hazardous substances that qualify as “dangerous goods” under the TDGA and TDG Regulations, compliance with those laws is critical. The sheer number and scope of changes made to them in the last year has made such compliance even more challenging than usual. This overview of the changes to key areas should help you ensure that your company remains in compliance with the transportation of dangerous goods requirements.
Diagram of DOT-111 Tank Car Requirements
Source: Transport Canada