view .pdf (3 mb)

Government of Western AustraliaDepartment of Mines and PetroleumResources Safety

Your ref:

Our ref:

Enquiries:

Email:

X0511/201501

Peter Drygala - Ph 9358-8040 Fax 9358-8188

[email protected]

Paul Retter AMChief Executive and Commissioner - Attention Phillipa ThodeNational Transport CommissionLevel 15/628 Bourke StreetMELBOURNE VIC 3000

Dear Mr Retter

PROPOSED CHANGES TO INSTRUMENTS GOVERNING THE TRANSPORTOF DANGEROUS GOODS

Thank you for your letter of 1 July 2016 inviting me in my role as the CompetentAuthority for the transport of dangerous goods for Western Australia to make aformal submission on the NTC proposals to change the following instruments"

• the Australian Code for the Transport of Dangerous Goods by Road andRail;

• the Model Subordinate Law; and• the Competent Authorities Panel Rules.

Please find attached my submission on the proposed changes.

If you have any questions or would like more information, please contact MrPeter Drygala, Principal Dangerous Goods Officer, on (08) 9358 8040.

Yours sincerelyÿ,--'ÿ

Ross StidolphChief Dangerous Goods OfficerDirector Dangerous Goods and Petroleum Safety

2 August 2016

cc Simon Grieve, Director Strategic Transport Analysis and Reform, Departmentof Transport

002021. Peter. DRYGALARelease Classification: -

Level 2, 1 Adelaide Terrace East Perth Western Australia 6004Postal address: Mineral House 100 Plain Street East Perth WA 6004

Telephone +61 8 9358 8001 Facsimile +61 8 9358 [email protected] wvÿ.dmp.wa.gov.au

www.wa.gov.au

DMP response to NTC proposals to amend the ADG Code, theModel Subordinate Law and the CAP Rules regarding the

transport of dangerous goods

Introduction

The Department of Mines and Petroleum (DMP) response is made by theChief Dangerous Goods Officer, who is the Competent Authority for thetransport of dangerous goods by road and rail for Western Australia.

The Chief Dangerous Goods Officer is the decision-maker under theDangerous Goods Safety Act 2004 and the associated Dangerous GoodsSafety (Road and Rail Transport of Non-explosives) Regulations 2007. Thelatter regulations mirror the national Model Subordinate Law or MSL and giveeffect to the Australian Code for the Transport of Dangerous Goods by Roadand Rail, edition 7. 4 (ADG Code).

The Western Australian comment comes in response to proposedamendments to ADG Code by the NTC as part of public consultation in July2016 on proposals to amend the ADG Code to provide for the new 7.5 edition.

A major part of the amendments to the ADG Code consist of the adoption ofthe latest 19th edition of the UN Recommendations on the Transport ofDangerous Goods Model Regulations (UN*) including the adoption of theLimited Quantities or LQ concept. Packages have to be of a small size asindicated in column 7 of the Dangerous Goods List before they qualify forrelaxed requirements. The debate in Australia has been whether to adopt theLQ concept as per the UN* or in a modified form. If modified, what will themodifications be?

The NTC has also asked for comment on proposed changes to theCompetent Authorities Panel Rules (CAP Rules), which are rules under whichthe national Competent Authorities Panel is required to function.

1. Limited Quantities Amendments

DMP agrees in principle to the proposal to introduce the concept ofConcessional Limited Quantities (CLQ), which is similar to the UN* concept ofLimited Quantities (LQ), but is applicable to a smaller group of dangerousgoods in order to exclude unacceptable dangerous goods from the regulatoryrelaxations associated with the transport of LQ.

DMP has always supported the reforms of LQs and strives to obtain thecorrect balance and seeks to be conservative ensuring community safety, butnot unduly so, by avoiding unnecessary burden on industry.

002014.Peter.DRYGALA Page 1 of 10

DMP understands that this reform will allow the repeal of the current retaildistribution load concept of chapter 7.3 in ADG Code and welcomes thisreduction in complexity.

DMP supports the notion that Australia takes a more conservative approachthan Europe and the US in applying the UN* relaxations of the LQ treatmentand is open to the possibility that there may be "problem dangerous goods",which need to be excluded from the UN* LQ system allowing regulatoryrelaxations from the standard ways of transporting dangerous goods.

DMP expects the number of additional "problem dangerous goods" to berelatively small for the following reasons:

a) the UN Experts on the Transport of Dangerous Goods have already sought toeliminate all of the most hazardous dangerous goods from LQ relaxation (seeTable 1 below). DMP strongly supports these exclusions.

b) The UN* system has also reduced the LQ package size of the mosthazardous packing group II substances to 100 ml for a liquid and 500 g forsolids.

c) the LQ treatment has been adopted in Europe for many years, apparentlywithout evidence of failure or harm.

d) the Australian proposal for CLQ is more conservative than the UN* concept ofLQ in regard to setting a lower placard load limit (down from 8 tonnes inEurope to 2 tonnes) and the requirement for a transport document (ratherthan no transport document).

Table 1 - internationallÿd UN* LQ exclusions as provided in theADG CodeThe following is a (incomplete) list of the more obvious internationally-agreedLQ exclusions gleaned from examining column 7 "Limited Quantity" in theDangerous Goods List of the UN*:

1. All Packing Group I substances, which represents a large number ofdangerous goods with the exception of the following nine flammable liquidsUN entries: UN 1133, 1139, 1210, 1263, 1267, 1268, 1863, 1866, 3295;

2. All temperature controlled self-reactive substances, Division 4.1 and alltemperature controlled organic peroxide, Division 5.2;

3. All Division 4.2 self-heating substances;4. All Division 4.1 polymerizing substances, NOS entries (UN3531-UN3534);5. All flammable and toxic gases (except for most aerosols UN 1950, see

SP277);6. All desensitised explosives of Division 4.1;7. All desensitised explosives diluted in flammable liquids of Division 3;8. Some substances of PG II with a subsidiary risk;

The current proposal from the NTC identifies additional "problem dangerousgoods" for exclusion from the LQ approach. These dangerous goods are


listed Table 2 below and are copied from the NTC public commentconsultation document.

Table 2- additional LQ exclusions identified by a NTC working groupThe following list of dangerous goods is proposed to be excluded in additionto those of Table 1. It reflects the work of a NTC working group in the firstquarter of 2016:

I • substances that must be temperature controlled (as without documentationtransporters will not be able to keep the substances as the correct temperature)).

• no limited quantity amount (as these are not eligible to transport using any of thelimited quantity requirements)

• packing group I (as these are considered high risk by the UN)• any subsidiary risks (this mirrors the ICAO exclusion for consumer commodities)• cyanides (because of the potential to create cyanide gas)• mercaptan (as it is the warning smefl for gas leaks and can cause people to believe

there has been a gas leak)• hydrofluoric acid (contact poison)• not otherwise specified (N.O.S.) substances (as the risk levels within one UN number

and packing group can vary)

DMP agrees with most of the additions in Table 2 and makes the followingcomments:

. Table 2 does not explain that some substances on the list are alreadyrecognised by the UN* as exclusions from the LQ system shown in Table 1.Only some exclusions derive from the NTC working group and the readerneeds to be able to clearly distinguish which the additional substances areproposed that are different to those in Table 1. For instance packing group Isubstances are already excluded except for the following flammable liquids:UN 1133, 1139, 1210, 1263, 1267, 1268, 1863, 1866, 3295;

a) DMP agrees to the exclusion of all packing group I substances including theflammable liquids: UN 1133, 1139, 1210, 1263, 1267, 1268, 1863, 1866,3295. Agreed;

b) the exclusion of dangerous goods which are specified as N.O.S. represents avery large proportion of industrial chemicals with insufficient justification. Thenumber of dangerous goods covered by NOS entries is likely to be larger thanthe number of dangerous goods covered by specific UN entries. The UN*already provides for some NOS entries to be excluded as well as all fromPacking Group I. Not agreed.

c) the exclusion of dangerous goods with a subsidiary risk represents a largegroup of industrial chemicals, which has not been sufficiently justified. Itseems not particularly relevant to mention "ICAO exclusions for consumercommodities" for air transport and apply it to industrial chemicals and landtransport. It is pertinent to know that the UN* has already excluded somesubstances with a subsidiary risk and PG II from the LQ relaxations, but notmost. Not agreed.


d) The NTC working group exclusion of PG II and III "cyanides" (PG I cyanidesare already excluded) is agreed to. The terminology should be more preciseand refer to the more specific term "inorganic cyanides" to clearly distinguishthem from (less toxic) organic nitriles (possessing a "cyano (-CN)" functionalgroup). A,qreed with more precise terminolo.qy.

e) The NTC working group exclusion of PG II and III "mercaptans" (PG Imercaptans are already excluded) could be more precise and refer to theexclusion of specific UN numbers (UN3336 and UN3071), otherwise thereader is uncertain whether UN2966 - thioglycol and UN2936 - thiolactic acidshould also be excluded. The latter are part of the I group of substancescalled "mercaptans", all of which possess the thio (-SH) functional group.The latter substances are expected to have a similar stench and henceshould also be excluded..A,qreed with more precise terminolo.qy.

The list omits "substances that can self-react (dangerously)". This is anomission, because two other NTC documents available to DMP contain thesesubstances. This terminology needs to be translated into legally preciselanguage to eliminate ambiguity and uncertainty. The following substances,using technically correct terms consistent with the UN classification systemand the ADG Code, make up the following group:

a. Division 4.1 solid desensitised explosives (already excluded by UN*);b. Division 3 desensitised explosives diluted in flammable liquids

(already excluded by UN*);c. Division 4.2 self-heating substances (already excluded by UN*)d. Division 4.1 polymerizing substances, UN3531 - UN3534, (already

excluded by UN*);

e. Division 4.1 self-reactive substances (only excluded by UN* iftemperature controlled);

f. Division 5.2 organic peroxides (only excluded by UN* if temperaturecontrolled);

Agreed with more precise terminoloqy --to highlight that the(additional) exclusions are confined to items e. and f.

Crucially the latest unexpected proposal excludes all industrial chemicals fromthe list of dangerous goods slated for CLQ treatment, which is now reservedfor household and personal care products and domestic consumables. This isa major departure from the proposal discussed and decided as part of thedecision RIS published in August 2015 and is not supported by the LQ policyas agreed to by the Ministerial Council in November 2015. The new proposalno longer has the economic benefit argued for in the decision RIS. A new RISwould need to be conducted and would be expected to show only modestbenefits at best.

The latest proposal eliminates all industrial chemicals from the CLQtreatment, and instead proposes a complex approval mechanism for industryto apply to CAP to have specific industrial chemicals determined to be CLQsubstances, on a case by case basis.


Discussions within DMP and among CAP members have identified concernswith such a burdensome and complex process:

a) the ADG Code is already overly complex and CAP has already a full agenda;currently and in the future there will continue to be a significant number ofpackaging, tanker and pressure vessel approvals requiring CAP decisions forindustry exemptions from prescriptive regulations and determinations onnovel packaging that continues to change with rapid technological advances,as well as determinations on the classification of dangerous goods;

b) It can be argued that the prescriptive mandatory requirements in the ADGCode already require too much Government intervention for the smoothoperation of industry without the additional proposed CAP determinations onCLQs;

c) Some CAP members have voice a concern that they do not have theexpertise or background to make the proposed determinations on CLQsubstances;

d) Ideally industry should be able to find in a single document, i.e. the ADGCode, the types of dangerous goods allowed for a CLQ treatment, but theproposal creates two additional listings (additional to column 7 in theDangerous Goods List of the ADG Code):

• one for CLQ industrial chemicals available on the website of theDepartment of Infrastructure and Regional Development, and

• one for industrial chemicals ineligible for CAP approval found in theMSL;

This process increases the potential for industry to become confused andincreases the rate of non-compliance and poor safety outcomes on Australianroads and railways.

e) the MSL will need an additional section of regulations to prescribe this newapproval process and to prescribe the types of dangerous goods that areexcluded from CLQ treatment;

Recommendations regarding LQ packaginq:

DMP recommends:

, Table 2, representing additional dangerous goods to be excluded from theCQL treatment, should immediately be finalised as proposed above. Nofurther suggestions for the list of ineligible dangerous goods have beenproposed, despite lengthy discussions on LQs over a number of years.Ineligible dangerous goods have now been sufficiently identified by the UN*and sufficiently reviewed and augmented by Australian stakeholders.

. All industrial chemicals should be eligible for CLQ without the complexprocess and additional regulations involving CAP approvals of these industrialchemicals one on one basis. Ineligible substances have been sufficientlyidentified, see recommendation 1.

002014.Peter.DRYGALA Page 5 of !0

There seems to be no sound reason to prevent the remaining industrialchemicals from being treated as CLQ.

Such a decision would get the proposal back on track and into harmony withthe international treatment, the NTC decision RIS and the Ministerial Councildecision of November 2015. It also eliminates the need for a complex CAPapproval process and additional regulations. The process will then be easilyunderstood from a reading of the ADG Code alone and without reference toone list found on a website, and another list found in the MSL regulations.

. A fifth "Note" is required to be added under Table 5.3- "Placard Load(Minimum Quantities)" of the draft ADG7.5 to explain how to deal with theaggregate quantities of mixed dangerous goods - when one or more standarddangerous goods package is loaded with the LQ load. This is necessary,because draft chapter 3.4 does not deal with it. It is also better to explain thissituation as part of Table 5.3, which is often reproduced by industry in theirguidance documents and out of context.

It is proposed that the aggregate placard load limit defaults to the type ofnon-LQ dangerous goods mixed into the load: either a 1000 kg (L) or 250 kg(L).

The type of placard for such mixed loads should be the one normally used formixed classes of dangerous goods. This is the diamond shown in Figure5.2.13 (orange with black horizontal stripes).

Retail Distribution Packaqe or RDPDMP supports the new concept of a retail distribution package (RDP) for thetransport of small amounts of household and personal care dangerous goods,which are packaged in accordance with the simple LQ packagingrequirements, from direct sellers and online retailers to householders.

The RDP must not weigh more than 10 kg and not more than 50% of thepackage can be made up of dangerous goods.

Retailers making use of the RDP transport will treat the LQ packages asgeneral freight without any transport documentation or placarding.

The package will not be labelled with "LQ" mark, but to prevent the packagebeing sent by air or sea it will say "retail distribution package - road and rail".

Recommendations on RDP:

DMP recommends the adoption of the Retail Distribution Package with twoamendments to make sure the RDP concept works as intended, and preventsthe misuse for large-volume dangerous goods transport:

002014.Peter.I)P, YGAI,A Page 6 of l0

The currently proposed .note in ADG7.5 explaining that the RDP is restrictedto packages transported direct from retailer to consumer must be upgradedfrom a note to a requirement;

, A load limit of 2 tonnes should be set. In any case, the Ministerial Councildecision from November 2015 must be complied with and requires "Settingthe placard limit to two tonnes for all types of L Qs".

2. Aligning the ADG Code with the 19th edition of the UNRecommendations on the Transport of Dangerous Goods- ModelRegulations

DMP agrees to align the ADG Code with the latest 19th edition of the UNModel Regulations and is not aware of any changes that would adverselyimpact on Australian industry or the community. There are clear trade andsafety benefits in keeping the ADG Code aligned with internationaltechnological advances in containment systems, new dangerous goods, newpackaging instructions and special provisions.

Notwithstanding the above comment, it is inappropriate to copy subsection2.1.3.7 from the UN* into the ADG Code regarding the duties of a competentauthority regarding the assignment of an explosive substance or article toclass 1. Australian jurisdictions administer state and territory based explosivesregulations which are outside of the MSL, the CAP process and the policyscope of the NTC.

Subsection 2.1.3.7 only leads to confusion and adds no useful information toanyone in Australia, including persons interested in the transport ofexplosives, which is prescribed by the Australian Code for the Transport ofExplosives by Road and Rail, third edition.

3. Comment about the Foreword

The foreword in proposed ADG7.5 states:

"The Code is compulsory from 1 January 2017. Until then, either Code edition7.4 or the Code edition 7.5 can be used."

"1 January 2017" is not a realistic timeframe and it should say "1 July 2018.

This new timeframe will allow the Code to start operating with a one-yeartransition period from 1 July 2017. It would allow the necessary time forjurisdictions to implement the regulatory amendments associated with theintroduction of the new edition, given that the Ministerial Council is expectedto give the approval for drafting amendments in November 2016.


4. Australian specific code amendments

The UN* Model Regulations is a generic document for all transport ofdangerous goods, whether by land, sea or air. It therefore does not providethe detail to the necessary requirements for road and rail transport, let alonespecific requirement of Australia. Half of the ADG Code has no equivalentchapters in the UN* and therefore there is a need to update and respond tochanging Australian conditions.

DMP has been closely involved in formulating the proposed amendments andsupports them all and suggests improved wording on two particular issue, seebelow regarding fire extinguishers and the packaging of xanthates - UN 3342.

Comment on amendment to Table 12.1 regarding Minimum Fire ExtinguisherRequirements for Road Vehicles transporting a Placard Load of dangerousgoods:DMP agrees there is an urgent need to upgrade the fire extinguisher capacityfor transport of placard quantities of small bags, IBCs and drums of certainexplosion risk dangerous goods (UN 1942, UN 2067, UN 3375, UN 3485, UN3487).

The urgency has been underlined by the explosion of a load of ammoniumnitrate (UN 1942) packaged in IBCs following a vehicle fire on 5 September2014 at Angellala Creek in QId.

The proposed amendment to the central paragraph of Table 12.1 intends toachieve this by upgrading the fire extinguisher capacity per trailer from 30B to60B and providing a 10B dry powder extinguisher for the cabin:

li'Load:

;Non-flammable goods and explosion risk dan,qerous .qoods (UN 1942, UN 2067. UN 3375,UN 3485. UN 3487)packed in:pressure drums, tubes, multiple element gas containers (MEGCs), tanks, bulk containers

i (solids)

Required extinguishers:1 x 60B dry powder, or 2 x 30B dry powder, in tile load area1 x 10B dry powder in the cabin (see 12.1.2.5.5)

The wording of the proposal is flawed, because it implies that the explosionrisk dangerous goods are packed in pressure drums, tubes, MEGCs, tanksand bulk containers, which they sometimes are, but the upgrade of the fireextinguishers needs to apply also to explosion risk dangerous goods whenthey are packed in small ba.qs, IBCs and steel drums and any otherpacka.qinq.

It is recommended to adopt new wording to explain that the upgrade appliesto all types of packaging, whether in a tank, bulk container or small bags,IBCs and steel drums and should then read:

002014.Peter.DRYGAI,A Page 8 of 10

"All explosion risk dangerous goods (UN 1942, UN 2067, UN 3375, UN 3485,UN 3487) regardless of the packaging they are transported in and non-flammable goods packed in pressure drums, tubes, multiple element gascontainers (MEGCs), tanks, bulk containers (solids)"

Comment on the amended entry of xanthates - UN 3342 in Section 3.2.3"the Dangerous Goods List":The intention of the amendment is to make no distinction between the packinginstructions in column 8 for packinggroup II and III xanthates. All xanthates need to be treated as if they werepacking group II, because that is how they are currently arriving in Australiaand that is how there are meant to be packaged for safety reasons.

The amendment achieves this intent to a large extend, but needs to go furtherby deleting the packing instruction "LP02" from the packing group III entry,because it is not desirable from a safety point of view to transport xanthates inlarge packaging.

5. Proposals to amend the Competent Authorities Panel (CAP)Rules

3.3 Appointment of the ChairpersonPlease correct the table for the rotation of the chairpersons from jurisdiction tojurisdiction over the next ten years:

After QId finishes chairing the period ending 31 May 2021, the order for thechairing of CAP needs to be SA, WA and Vic. (not Vic, NSW and QId);

This makes sure that the correct order is followed and each of the largerjurisdictions has an opportunity to provide the chairperson.

4.7 Records of decisionsThe three duties given to the chairperson in relation to making and providingof minutes are inappropriate and need to be passed to the Secretariat.

The chairperson's job is already too onerous.

5.3 Mana qin.q records and informationThe duties in this section given to the chairperson in relation to recordmanagement are inappropriate and need to be given to the Secretariat.

The chairperson's job is already too onerous.

Sections 4.13, 5.2 and any other section referring to the decision-making andrecord keeping for Concessional Limited Quantities substances


DMP does not agree that CAP should make decisions regardingConcessional Limited Quantities substances.

Section 4.13 Matters the Panel must have regard toDMP does not agree to these changes.

These are important decision-making constraints and may make it moredifficult for decisions to be made.

The Competent Authorities make the primary decisions before they getreferred to CAP for national application. It is better if all decision-making byCompetent Authorities and CAP is subject to the same rules.

It is better if these decision-making rules are part of the MSL and not part ofthe CAP Rules. A regulation-making process would allow much widerconsultation on these important and potentially contentious issues and includeall stakeholdÿt Government.\

iRoss StidolphChief Dangerous Goods OfficerDirector Dangerous Goods and Petroleum Safety

2 August 2016

002014.Petcr.DRYGALA Page l0 of 10

view .pdf (3 mb)

Documents