Transport Canada on October 17, 2013 has issued a Protective Direction that requires any person engaged in importing or offering crude oil for transport to immediately test the classification of the crude oil and to provide those test results to Transport Canada on demand. Following testing, any person who imports or offers for transport UN 1267 or UN 1993 crude oil must immediately provide an SDS for the tested product via Canutec. Any crude oil moved under those UN entries that has not yet been tested must be carried as a Class 3, Packing Group I cargo. The Protective Direction has been issued following concern that the crude oil cargo involved in the fatal derailment in Lac-Mégantic in July was wrongly classified.
The receptionist brings you the business cards of two PHMSA auditors and tells you they are waiting to speak to you. What do you do?
Well, after taking a deep breath, you go introduce yourself and find out why they are there. A “surprise audit” is how they respond, and you think, “OMG, how can this be happening?” Once you regain your senses, you ask them more about the process and what they wish to see. When they ask you questions, be honest; don’t try to hide things – that will only get you in trouble.
First question: Where are the training records?
If PHMSA feels that you are a hazmat employer, you will have hazmat employees. Under 49 CFR 172.700 you are required to train employees in general awareness, function specific, security and safety training. You are required to have documentation of that training. It is required every 3 years.
There are several possible violations: failure to train and/or failure to document the training.
A violation for training is easy to avoid. Keep good records, and ensure all employees who could be considered hazmat employees are retrained every three years – without question!
Second question: Where are your packaging records?
What packaging are you using? Do you have a packing instruction sheet for that package on file? Are you preparing it as the manufacture said you should? Did the manufacture provide you with instructions that are repeatable time after time? Are you following the closing instructions? Are you torqueing the bottles as you should? PHMSA will ask to see everything, including the torque wrench that you are using.
At the end of the day, PHMSA will sits down and explain what they find. If you are lucky, you will have no probable violations, and perhaps some recommendations. If you are not so lucky, PHMSA will explain the probable violations, and the process for the corrective actions.
Corrective actions are very important. Your response to the corrective action may determine how bad your actual violation maybe in the end. If you have probable violations, spend time ensuring that the corrective actions are well thought out meet the 49 CFR standards and correctly respond to the violation.
What starts out as a stressful day turns out to be a valuable learning experience. If you are doing things right to begin with, PHMSA will understand that, and will work with you to fix about problems.
Did you know that ICC has auditing services? Let our regulatory experts come and audit your operation, including training and packaging records. We will provide a list of “probable violations” and feedback that you can use to improve. You never know when you will have that knock on the door.
The US Government Accounting Office (GAO) has issued its much anticipated wetlines report, “Cargo Tank Trucks: Improved Incident Data and Regulatory Analysis Would Better Inform Decisions about Safety Risks.” http://www.gao.gov/products/GAO-13-721.
So, you want to bend the rules? What happens when you have a scenario where following the regulations to ship your dangerous goods becomes impractical to the point of impossibility?
This blog entry will speak to what the process is for applying for an Equivalency Certificate in Canada as per the Transportation of Dangerous Goods Clear Language Regulations.
Generally when people ship dangerous goods, the process becomes a matter of reading and complying with everything the regulations state. However, below are some scenarios where following exactly what the regulations state is… shall we say… less than ideal.
Al wants to ship some large batteries for equipment within Canada with classification:
UN 2794, Batteries, Wet, Filled With Acid, Class 8, P.G. III
His dilemma is that when a new battery is commissioned, the outer package is generally discarded due to space limitations. In many cases these batteries were installed prior to the packaging requirements of Part 5 of the TDG Regulations.
Al wants to ship this without UN approved packaging.
Bill wants to ship a MRI machine that contains liquid helium, classification:
UN 1963, Helium, refrigerated liquid, Class 2.2
His dilemma is that his MRI machine is what contains the Helium and it is not in an approved means of containment. He requires the helium to remain in his equipment during transport in order to keep the magnet cool.
Bill wants to ship this without approved packaging.
Chuck wants to send some prototype lithium ion batteries that have not undergone the UN 38.3 Part 3 tests, to be sent internationally with the classification:
UN 3480, Lithium ion batteries, Class 9, PG II
His situation is that he must ship these by air and in order to do so, as per the ICAO Technical Instructions, approval by the appropriate authority of the State of origin (Transport Canada) is required.
Chuck wants to ship this before having the required test results from the UN Manual of Tests and Criteria, Part III, subsection 38.3 for lithium ion batteries.
In all three of these scenarios, someone is looking to send a shipment outside a normal scope of work. Normally when one thinks of shipping dangerous goods, the process is somewhat standardized. All three of the above scenarios are looking to send a shipment without being in complete compliance with the regulations. This is when an Equivalency Certificate must be used. Essentially when you apply for a certificate you are saying:
Dear Transport Canada, I would like to have permission to not follow one of the parts of the regulations, but I promise that in breaking from the regulations I will ship the dangerous goods in such a way that they are just as safe as if I did follow the rules, perhaps even safer. Here is how I propose to do it…
If they feel that your methods are adequate, they may approve your application.
Once you realize that your goods require an Equivalency Certificate in order to be allowed to be transported, you should write up your proposal as soon as possible. Transport Canada requests that you submit the proposal to them three months before you intend to start shipping. If you are currently using an Equivalency Certificate to transport your goods, keep in mind that they do expire and must be renewed periodically which requires another submission to Transport Canada, again giving them the requested three month lead time.
What must you put on your application? 14.1 in TDG specifically lists what is required. I received a recent version of essentially the same checklist from Transport Canada last month. Keep in mind that all information must be provided and that missing information will delay the application. Here is what they sent me:
How to Apply for a Permit of Equivalent Level of Safety
Section 14.1 of the Transportation Dangerous Goods Regulations states that an application for a Permit of Equivalent Level of Safety must contain the following information:
- if the applicant is an individual, the name of the individual;
- if the applicant is a company or an association, the name of the company or association and each association member as the name appears in letters patent, articles of incorporation or other documents that show the legal identity of the applicant;
- the street address of the applicant, including the postal code;
- the telephone number of the applicant and, if applicable, the facsimile number;
- where a person applies on behalf of the applicant, the name, position and business telephone number of the person and the name, position and business telephone number of the contact person identified in the documents that will accompany the permit;
- a description of the dangerous goods, including the shipping name, primary classification, subsidiary classification, if any, product identification number, packing group and, if the dangerous goods are in a solution or mixture, the composition of the solution or mixture and the percentage (specified by volume or weight) of each chemical;
- the method of packaging the dangerous goods, including a description of the means of containment and the quantity of dangerous goods in each means of containment;
- the modes of transport for which the permit is requested, that is by rail, road, aircraft or ship;
- the requirements of the Act and these Regulations that the applicant proposes not to comply with;
- a detailed description of the proposal for the permit, including:
- the length of time or schedule of activities for which the permit is requested,
- the manner in which the applicant will handle, offer for transport or transport the dangerous goods and how that manner will ensure a level of safety at least equivalent to that achieved by complying with the Regulations, and
- drawings, plans, calculations, procedures, test results and any other information necessary to support the proposal.
Applications can be forwarded to one of the following addresses:
Chief, Permits and Approvals Division, Transport Dangerous Goods
330 Sparks Street, 9th Floor
Ottawa ON K1A 0N5
If you are beginning to feel daunted by the task at hand, here is my advice. Take everything step by step and talk to some of the people at Transport Canada to ask for their guidance and advice. I have picked the brains of several Transport Canada personnel and not one of them has ever given me a hard time or made things difficult on me. Their main goal is safety and if you go in with the mentality that safety is paramount, the rest should flow nicely.
If your application gets accepted, ensure that you enclose a copy of the Equivalency Certificate with your shipment so that everyone along the way who comes in contact with the packages understands how this is being shipped.
After approval, the Equivalency Certificate information will be available online.
Keep in mind that different countries have different rules and regulations. Each of the three scenarios above has a different outcome when travelling abroad.
Even with a Canadian Equivalency Certificate, if travelling by ground to the United States, Al must make sure he is compliant with 49 CFR (specifically packing instruction 173.159), otherwise he must speak with the Department of Transportation and apply for a similar permit with them.
Even though an Equivalency Certificate is required for transport in Canada, while travelling by ground through the United States, the MRI is not considered dangerous goods. This is referenced from the DOT Ref: 99-0056.
As per the ICAO Technical Instructions, this shipment only requires approval from the appropriate authority for the state of origin. So long as it will first be loaded onto an aircraft in Canada, Transport Canada’s Equivalency Certificate is all that is required, even when flying to a different country. It is still worth double checking with the country you wish to fly into to ensure that they do not have a state variation saying differently.
If you ever do require a permit in another country, it is important to communicate with them well before your anticipated ship date as you might have to go through an application process that is similar to that of Transport Canada, but in their country, and it may take a few months to process.
I still find it hard to believe that there are some companies out there that haven’t heard of the Globally Harmonized System of Classification and Labeling (GHS). It’s hard for me to believe this, because in three months’ time everyone who works with hazardous chemicals in the workplace will have to be trained (and no I’m not kidding). December 1st, 2013 is the deadline to have all employees trained on the GHS within OSHA, yet somehow I still show up to companies to train their workers on shipping dangerous goods (this often involves employees who are in the EHS department) and I ask them if they have heard of GHS or OSHA HazCom 2012. To my surprise I still get the blank stares and the question “What is that?”. This really isn’t a bad thing for me because that means I get to help one of our clients avoid fines by informing them about more training they will need, and in many cases they have ICC train them in GHS within OSHA as well.
The GHS is what OSHA has adopted for its new Hazard Communication Standard and it was adopted in 2012 which is why the standard is called OSHA HazCom 2012. This new standard is meant to try and “harmonize” hazardous chemical communications around the globe. Before we go any further I want to inform you that the GHS and OSHA HazCom 2012 are NOT the same thing. The GHS is a recommendation that was developed at the “Earth Summit” in 1992 in Brazil by the United Nations (UN), and it encompasses the classification of chemicals, SDSs, labels, and training. OSHA HazCom 2012 are the pieces of GHS that OSHA has adopted plus other hazards that were not part of the GHS.
The major change that is happening with the adoption of the GHS within OSHA is going to be the classification of chemicals. The classification will drive the standard phrases that will appear on the SDS (changed from MSDS) and also appear on the drum labels. Under the old system there was very little information that needed to be provided on an SDS and each country had different standards for how they wanted chemicals classified. Depending on the chemical that was being shipped there could be a classification of toxic in one country, flammable in another, and flammable and toxic in a third. This caused chemical manufacturers to need at least three MSDSs for that one product. As you can imagine, this caused nightmares for chemical companies who wanted to be competitive on a global market.
Now, I know what you are thinking “if the GHS is adopted then won’t that fix these problems?”, and the simple answer to that is “no”, not necessarily. As I mentioned earlier the GHS is just a recommendation that the UN would like you to follow, but it is no way mandatory. What this means is that countries are free to adopt any portion of the GHS that they would like in fact they do not have to adopt any portion of the GHS if they do not want to. The United States did just that, they adopted portions of the GHS, and they added extra hazards (hazards not otherwise classified) to it as well. Not only is the GHS optional but the U.N. is updating the recommendations every two years and not every country is updating alongside the U.N.. The U.S. decided to use the 3rd revision of the GHS which was published in 2009, and in June of 2013 the U.N. published the 5th revision of the GHS, so the U.S. is a little behind.
The question we should really be asking ourselves is “Will the GHS improve workers knowledge of the hazards associated with the chemicals in the workplace?” and in my honest opinion I believe that the implementation of these recommendations will produce a more knowledgeable workforce who will be able to keep themselves safe when using hazardous chemicals in the workplace. Not only do I believe in the safety and knowledge that the GHS brings, but I also believe that with time, many more countries will adopt these recommendations which will transition us into a “Globally Harmonized System” where we will no longer need 3 SDSs (or more) for one product.
For those of you that have stuck with me this long I can only assume (and we all know what assuming makes us) that you are interested in the GHS and want more information. Well, if I am correct and you do want more information, then you have come to the right place. We are here to help you understand what is required of you to make this a smooth transition, whether it be classifying chemicals and authoring an SDS for them or maybe you just need to be trained so you can understand what is required of you, either way we will keep you up to date on your GHS needs. Give 888-442-9628 a call if you are confused about GHS or you want more information on training or services.