Photo: Transport Canada
by Mohammad Leghari, Miller Thomson LLP
The Canadian government proposed significant changes to the Transportation of Dangerous Goods Act (Canada) on November 26, 2022. The public consultation period recently closed on February 9, 2023. These proposed changes are seen as a necessary step in modernizing regulations related to the transportation, import, export and handling of these types of goods to further align Canada’s requirements with the prevailing international standards.
Canada’s Transportation of Dangerous Goods Regulations (“TDGR”) have come under significant scrutiny in recent years due to a lack of alignment with the latest international codes. Notably, the TDGR currently do not incorporate important updates that have been made internationally, such as new hazard classification criteria, transport conditions for certain dangerous goods, and hazard communication tools that promote efficiency and cost savings while enhancing safety during transportation and handling.
The delays in adopting these changes into the TDGR have placed financial and administrative burden on stakeholders. In particular, the differences between the TDGR and the United States’ transportation of dangerous goods regime can create impediments for consignors and carriers on both sides of the border, resulting in significant challenges as they try to navigate two distinct sets of requirements.
The proposed regulations aim to resolve these issues, and bring the TDGR in line with the latest versions of the 22nd edition of the United Nations Model Regulations on the Transport of Dangerous Goods (“UN Recommendations”), and the 2020 edition of the International Maritime Dangerous Goods Code, and U.S. 49 CFR (the “U.S. regime”). This alignment is intended to achieve several important goals, such as easing the transport of dangerous goods between Canada and the United States, seeking to improve clarity, consistency, and certainty for stakeholders by ensuring that the same requirements apply to both domestic and international transport of dangerous goods, and enhancing safety for Canadian businesses by adopting cost-saving amendments and safe alternative provisions in the TDGR.
Some of the key changes proposed are discussed and highlighted below.
Classification of dangerous goods
The proposed amendments aim to simplify the classification process by directly referencing the UN Recommendations, with some exceptions like explosives and radioactive materials. This would allow for up-to-date provisions and harmonization. The modifications would also streamline the identification of dangerous goods. For those listed in Schedule 1 of the TDGR (the “Schedule”), the need for testing to demonstrate and confirm their dangerousness would be eliminated, as international codes do not require it if the good is specifically listed in the Schedule.
New UN numbers
The proposed amendments would add 16 recently added UN numbers and shipping names for dangerous goods and articles, such as cargo-installed lithium batteries and cobalt dihydroxide powder, to the Schedule. This would allow these goods to be transported using a more accurate name, leading to improved hazard communication. Currently, these new UN numbers and shipping names are used internationally but since they are not included in the TDGR, consignors shipping internationally are faced with an additional administrative burden of either using two shipping documents (one reflecting the TDGR UN number and shipping name and another reflecting the internally-accepted versions), or altering their shipping document in a manner that satisfies the classification requirements in Canada and internationally.
The proposed amendments would create new special provisions in the TDGR that align with recent international updates, such as exempting dry cotton bales from certain parts of the TDGR, allowing the transport of acid or alkaline wet batteries on pallets if the quantity exceeds 450L, clarifying the classification for radioactive materials presenting more than one hazard, and adding specific criteria for selecting the UN number and shipping name for lithium batteries contained in equipment and cargo transport units, among other things.
The proposed changes to the requirements for dangerous goods safety marks include allowing for the use of placards from the UN Recommendations and U.S. regime, with text as long as it does not obstruct the symbol. Currently, this text is not permitted in Canada, creating additional administrative burdens for international shipments. Reduced-size labels, banana labels, and labels reduced according to ISO 7225 on small cylinders would be allowed, and placards and labels could be reduced to a minimum size of 100 mm x 100 mm and 30 mm x 30 mm, respectively. All labels would need to be positioned to be seen from a single vantage point, and the minimum size for UN numbers on small containers and intermediate bulk containers would be clarified. Currently, some of these actions are allowed if an equivalency certificate (“EC”) is issued by Transport Canada, but this requirement to seek an EC also imposes additional administrative burdens on those involved.
The proposed amendments would incorporate the National Standard of Canada CAN/CGSB-43.150, which is a standard for the design, manufacture, and use of standardized packaging for transporting dangerous goods. The new standard would replace the previous Transport Canada Standard, TP 14850, 2nd edition, for small containers for transporting dangerous goods. The new standard builds on the previous one and includes several updates.
One significant change in the new standard is the requirement to retest container designs every five years to ensure their continued safety. Additionally, the new standard allows for certain plastic drums and jerricans to be used past 60 months from their date of manufacture, provided specific conditions are met.
The new standard also introduces a one-time exemption for drum reconditioning when transporting dangerous goods for disposal, recycling, or any other reclamation process. Another significant update in the new standard is the adoption of a special case for liquid dangerous goods of specified classes transported in a mobile process unit. Finally, the new standard clarifies the requirements for transporting dangerous goods intended for disposal, recycling, or any other reclamation process.
Overall, the proposed amendments would improve the safety of transporting dangerous goods by incorporating a more up-to-date and comprehensive standard for packaging design and use.
Alignment with the U.S. regime
The proposed amendments would further align the TDGR with the U.S. Regime and include the following suggested changes:
- Allowing dangerous goods transported by road or railway vehicle to be returned to the United States or transported from Canada to the United States in accordance with U.S. requirements. Currently, Canada allows for shipments transported into or through Canada from the U.S. to comply only with U.S. requirements but this reciprocity does not exist for shipments to be exported from Canada to the U.S.
- Accepting U.S. toxic by inhalation labels and placards for dangerous goods instead of the Canadian “inhalation hazard” label or placard.
- Requiring certain text (e.g. “NON-ODOURIZED”) on a means of containment containing non-odourized liquefied petroleum gases to identify the hazard more readily to emergency responders and those involved in transporting these goods, as Canada currently does not have a similar requirement.
- Allowing the use of special permits issued in the U.S. for the transportation of dangerous goods from Canada to the U.S. Currently, the TDGR require a Canadian EC to be used and accordingly, consignors are required to apply for two permits.
- Allowing the use of text that communicates the dangerous goods hazards on labels and placards, in any language. Currently, Canada does not allow such text and accordingly, safety marks must be replaced to comply with the TDGR.
The proposed changes would extend limited access provisions (which grant exemptions from transport document and handling label requirements) to any aircraft flying directly to or from a location with no year-round access by a mode of transport other than air (rather than only small aircraft). The responsibility for classifying dangerous goods and ensuring correct packaging would be transferred to air operators to comply with limited access rules. This is expected to codify existing practices and not increase burden or costs for operators. The limited access provisions will extend to gases, flammable liquids, bear bangers and bear spray, paint, wet batteries, engines, machinery and vehicles.
The proposed amendments would align the TDGR terminology with the UN Recommendations for consistency, allow the use of flexible intermediate bulk containers for contaminated soil transport, and include an exemption for non-spillable wet batteries intended for disposal. The definition of “gas” would also align with the UN Recommendations. Additionally, the TGDR would specify when qualifying words such as MIXTURE, STABILIZED, MOLTEN, and TEMPERATURE CONTROLLED would need to be included with shipping names in certain situations.
Originally published in Lexology. Used with permission.