Matej Babin THE LEGISLATION SCHEME IN TRANSPORTATION

Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 THE LEGISLATION SCHEME IN TRANSPORTATION OF
DANGEROUS GOODS
Matej Babin1
Introduction
The most important aspect of dangerous goods transportation is safety. All legal
regulations are based on this aspect. Generally the principles of common transport
regulations, which have a character of binding international agreements, are applied. In
Europe, there are specific regulations in each transport sector. Connections and cohesions in
legislation are described in following text, as well as the transfer of knowledge to increase the
safety level.
Figure 1: Main idea of territorial validity of the regulations on transportation of dangerous
goods by transport modes.
General worldwide regulations
It all started by the effort to simplify the complexity of surveyed sphere. We can state,
that the highest priority in process of creation standards and primary legislation has the UN,
more precisely, the UN global committee of experts for transportation of dangerous goods.
Periodical discussions and negotiations of this committee resulted into 17th revision of “UN
1
Ing. Matej BABIN, KŽD, FPEDAS, ŽU v ŽILINE, matej.babin@fpedas.uniza.sk
1
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 recommendations for transportation of dangerous goods” (originally called “Orange book”).
Orange book was first time published in 1956. Under the title “UN recommendations…” is
published since 1997. These recommendations do not have legal obligation character; they are
something like the manual for all transport types. Thanks to the development of all industries
and the technical-technological progress, the innovation of these recommendations is
necessary. Especially in the sphere of classification, marking, documentation, life protection
and injuries prevention, cities and settlements damage prevention, transport units and vehicles
damage prevention, environmental damage prevention. Separate 5th revised edition is
published besides these recommendations and it contains the manual of tests and criteria for
risk of transport safety determination – “manuals for testing criteria”. These manuals are very
important especially for producers, which creates the cards of safety data – point 14,
information about transport. The manuals contents also test procedures for cases, when
dangerous goods can be transported. Dangerous goods are substances, materials, etc., that are
dangerous for their character or properties and there is high level of risk for items, persons or
objects occurring during the transportation. The meaning of these publications is very clear,
while they are implemented, trough other organizations, into RID, ADR, IMDG Code or
American “Code of federal regulations title 49”, Mexican “Reglemento para el transporte
terestre de materials y resududos peligrosos”, Canadian “Transportation of dangerous goods”,
or Australian “ADG edition 07/ volume 1, 2 – The Australian Code for the Transport of
Dangerous Goods by Road and Rail”, etc.
Another important global directive is GHS, i.e. Global Harmonized System for
classification and marking of chemicals. This system was aroused out of a co-operation of
ILO and OECD on the base of mandate from UN conference for environment and
development (UNCED in Rio de Janeiro in 1992. The decision of GHS creation was based
especially on the tasks of continual globalization of markets and the inconsistency of legal
regulations, as well as markings and other services connected with the sphere of dangerous
goods. Too high inconsistency of legal regulations in number of countries caused
complications to distributors and producers from other countries in their effort of entering the
markets. This complicated the business with the dangerous goods (and the impact of synergic
effects from free trade). GHS should solve these problems. However, in practice it means
enormous effort of interested subjects and very long time period needed for fulfilling
specified objectives. In present the registration of dangerous goods by producers is in progress
and the registration of dangerous wastes started. These procedures have to be made by
2
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 producers under the directive no. 1272/2008 EU about classification, marking and packaging
substances (REACH) and according to corresponding bulletins.
Figure 2: from up – regulations of North America, Australia and global regulations for
transportation of dangerous goods – Canadian TDG (transport policy), WHMIS (safety at
work), Mexican “Reglementos…”, USA SFR 49 (transport policy), OSHA (safety at work),
NFPA (firemen rules), Australian ADG (transport policy) and SWA (safety at work). At the
end there are the regulations for radioactive materials, nuclear waste and the very last there
are common regulations and agreements for all wastes (Basel agreement).
This process is still in progress and re-classification and re-marking of products with the
character of dangerous goods is planned to be finished until June 2015 with several
continuous milestones. These milestones have to be fulfilled especially by the companies
dealing with dangerous goods production and by regional governments (relevant production
volumes per year). Transitional period 2010 – 2015 is set and during this period it is allowed
to use marking and classification according to DSD (directive 67/548 about dangerous goods
– classification of goods), according to DPD (directive 1999/45 about dangerous preparations
– classification of preparation) and according to the card of safety data (SDS) – Annex II to
directive REACH. The recommendations will be used from industrial workplaces up to
common consumers (obligation to inform about supply chain). The directives from SEVSO
3
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 category are about safety and procedures of safe industrial processing of dangerous goods to
prevent damages which can in many cases have the character of contamination and can have
consequences lasting several generations.
Legal regulations and Europe
There are several directives and regulations which effort is to improve inconvenient
present state. Elementary basis consist of all sectors of national economies, which are dealing,
even marginally, with dangerous goods. Directive 2008/68/EU about inland transportation of
dangerous goods is, inter alia interesting for the sphere of railway transport. It defines
competences of all states participating on agreements RID/ADR/AND, so they can remove
part, that they do not use (AND and/or RID). The directive allows relevant authorities to
forbid that transportation of dangerous goods, which character could be for any reason
dangerous for environment, for property or health of citizens. This directive assumes total
harmonization of RID and SMGS until 2018. It annuls and replaces several previous
directives. In the annex of the directive, there are showed particular agreements (regulations).
Each country individually has defined the restrictions and their validity. Under this legal
regulation, from the hierarchical point of view, there are relevant legal acts exactly regulating
railway transport. Most important legal acts are Enactment no. 513/2009 Z. z. about tracks
and Enactment no. 514/2009 Z. z. about transportation on tracks. Other transport modes are
regulated by other legal acts.
Figure 3: Scheme of legislative process – changing the directives about dangerous goods in
the sphere of production, processing, etc.
4
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 To demonstrative simplification of valid legislation of dangerous goods transportation,
it is necessary firstly to divide the transport on intercontinental and inland ground transport.
Intercontinental transportations can be realized basically by two transport modes –
transoceanic waterways and airways of air transport. IMO (International Maritime
Organization), based in London, is the highest regulation authority for maritime transport.
IMO, just like ICAO are members of UN, respectively ECOSOC (Economic and Social
Council). Under the IMO title, MSC (Maritime Safety Committee) meets and publishes
changes of transport regulations. It publishes basically three elementary internationally valid
regulations: IMDG Code for all groups of cargo transported by ships, IBC Code (International
Code for the Construction and Equipment of Ships carrying Dangerous Chemicals in Bulk)
and ISPS Code (The International Ship and Port Facility Security Code).
Figure 4: from up to down – common global regulations (GHS and Orange book), European
regulations (RID, Annex II to SMGS, ADR, ADN, ADN – R, ADN – D) and intercontinental
regulations – IATA, ICAO, SOLAS series - IMDG, etc.
Except for these elementary regulations, it is possible to regulate transportation, as
well as requirements, by other legal tools, for example protocols, notices, prohibitions, etc.
In cargo air transport, there are two main organizations which regulates transportation
of dangerous goods. ICAO (International Civil Aviation Organization) for passenger air
5
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 transport and IATA (International Air Transport Association) for cargo air transport. Both of
them have residences in Montreal, Canada, but IATA has also its European Center in Geneva.
IATA publishes “IATA dangerous goods”, what are basically generally valid policies on the
base of model directives. “Technical Instructions for the Safe Transport of Dangerous Goods
by Air” are elaborated on the same principle. This directive (Technical Instructions…) is in
fact Annex 18 of technical instructions of ICAO, which are transferred into domestic
regulations of member countries. In Slovakia, they are the L-series regulations. So the
domestic regulation L 18 (air transport of dangerous cargo) is identical with original in 95 –
99 %. In addition, ICAO in cooperation with IFALPA (International Federation of Airline
Pilots´ Associations) created together the document Emergency Response Guidance for
Aircraft Incidents Involving Dangerous Goods. Platform for discussions and implementation
of changes is the Dangerous goods panel under the title of ICAO.
There are two main organizations responsible for creation of changes in Europe for
inland ground transport. The first one is UNECE (United Nations Economic Commission for
Europe) and the second one is OTIF (The Intergovernmental Organization for International
Carriage by Rail). UNECE is organizational part of UN, it has residence in Geneva and it has
56 member countries.
Main authority for transport is Inland transport committee and for transportation of
dangerous goods working party WP 15 is established. This party has 30 members of experts
for dangerous goods transportation (mostly they are safety consultants and authorized experts
in relevant sphere from various countries of EU). This party regulates mainly road transport
and inland waterway transport. It has close cooperation with railway transport, which is
regulated by the Expert Committee for RID. This cooperation has been mainly about
questions of converge and unification of ADR and RID in recent years. Resulting from these
discussions and from the pressures of supply chains, the so-called CRTD document has
arisen. It is Convention on Civil Liability for Damage Cause during Carriage of Dangerous
Goods by Road, Rail and Inland Navigation Vessels. In addition, the Expert Committee for
RID has close cooperation with Organization for Cooperation in Railway Transportation. This
cooperation is dealing with converge RID directions and Annex II of SMGS.
6
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 Figure 5: Connection scheme of legal regulations, responsible organizations and expert
committees (dashed line mean cooperation on both sides).
7
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 For inland waterways, the conditions for dangerous goods transportation are regulated
basically by ADN regulations. Central Committee for Water Transport on Rhein river (ZKR)
is providing reactions to these regulations. This committee regulates and specially modifies
the conditions for water transportation especially on rivers Rhein and Danube with purpose of
providing faster and safer transportation. These regulations are known as ADN R.
On the other side, in road transportation, there is only one obligatory agreement and that is
ADR. Here, the situation is moderately different. Except for mentioned authorities ITC and
WP 15, also IRU (International Road Transport Union) which is also part of UNECE, and ITF
– International Transport Forum (previously CEMT, also part of OECD), are taking part in
regulation of road transport. IRU is relevant authority for CMR (agreement about
transportation contract in international road transportation), while CMR is logically referring
to ADR agreement. ITF is publishing list of dangerous wastes as well as transport manuals.
Notation: dangerous wastes are problematic, they needs to be researched separately as well as
nuclear and radioactive material, due to extensity of regulation and high number of valid
rules.
Figure 6: Connection scheme of legal regulations, responsible organizations interested in
nuclear transport and dangerous waste.
Legal regulation on railway transport
In the sphere of railway transport there are two large law entities with diametrically
different approach. Until Vilnius protocol was ratified in 1999 and original COTIF was valid,
8
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 the changes in transport regimes COTIF and SMGS/SMPS were minimal. But after the
ratification, total overview on railway transport law has changed. Until this moment, there
was subject “national railway carrier” under consideration, as well as their wagons, property,
etc. (these subjects are in SMGS also in present). Mutual boarders of operating areas were
specified together with delineated routes, equalizing of enforcements, reverse runs, mutual
abandonment, etc. Transport routes and wagon runs (empty and loaded) were strictly
monitored and customers´ wagons were identified (in contrast to wagons of national railway
operator). In present, according to AVV, all wagons are on the same hierarchical level and all
wagon runs organizes keeper of the wagon, or subject to whom the wagon is rented or placed
under contract in other way.
Figure 7: Legal regulations valid in the sphere of railway transportation and other important
legislation.
Principle of AVV function is based on the cooperation of UIC and ERFA (European
Association of Freight Railway Transport) with UIP (International Union of Wagon Keepers).
These subjects created together GCU Bureau, which is basically AVV headquarters and its
purpose is to supervise the AVV agreement abidance and delivers instructions for national
regulators for registration, etc. All wagons that fulfills AVV conditions have to be registered
at the bureau, otherwise they can´t be transported in AVV regime, i.e. they can´t leave the
country. Annex 9 of AVV (General agreement about freight wagons use – conditions for
technical transitional inspection of freight wagons) is valid for the transportation of dangerous
9
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 goods. The UIC agenda has mainly technical parameter of railway parameters. The directive
UIC 471 – 3 (Controls of dangerous goods consignments) is also very important for the
transportation of dangerous goods. In the group of generally valid rules, there are basic
regulation principles of European Union, which are also important, especially directives and
regulations known as First, Second and Third Railway Package. One of most important
changes in railway transport were: non-discriminatory approach to railway routes allocation
by infrastructure manager, certification of train staff, integration and interoperability of
European railways. The agenda of interoperability was taken from UIC, what is not so
favorable,
taken
into
account
the
number
of
members.
For the transportation of dangerous goods on railways, there are two important directives.
First is above mentioned directive 2008/68/EU. Second and more important, in term of
generally valid rules without direct impact are AIM (Accord règle les rapports entre
transporteurs et contient notamment des règles uniformes concernant le décompte et la
répartition des indemnités entre les transporteurs subséquents dans le trafic international
ferroviaire des marchandises). AIM are rules of agreement between carriers in international
railway transport for the purpose of mutual clearing. Last change was published on 1st July
2011. They have 52 pages and 10 annexes, concretely:
Annex 1: Preliminary analysis of delivery times
Annex 2: Declaration of dividing
Annex 3: List of disposed compensation received
Annex 4: Tax return applications solution without considering other carriers
Annex 5: Proposal of settlement
Annex 6: Declaration of differences
Annex 7: Application for account information
Annex 8: Declaration of compensations
Annex 9: Addresses of authorities accredited for insurance events liquidation and for
compensations
Annex 10: Loading in regime CIM/SMGS, if CIM/SMGS consignment note was used,
or if formal report was used.
Authority named CIT – International Transportation Committee is necessary for correct
applications of AIM, CIM and RID. The main task of CIM is to supervise following the CIM
rules. Subsequently, on the base of this information, CIT regulates and suggest the changes of
10
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 CIM rules for OTIF. CIT created rules and handbooks for CIM/SMGS usage and created also
consignment note. CUV list is also important because it is intended for transportation of
railway vehicles.
Transport regime SMGS is regulated by Organization for co-operation between
railways (OSJD) and this regime is related to those countries, which are members of OSJD.
Former Czechoslovakia was member of OSJD, but Slovak republic, although it is its
succession state, is not a member of OSJD. While Slovak Ministry of Transport signed
Agreement 1520 with the ministries of Ukraine and Russian Federation, the SMGS rules are
de facto (but not de jure) in force with moderate changes. This is also the reason, why
transportation of dangerous goods is regulated by Annex II of SMGS. This annex is, like RID,
revised in two-year periods. Both expert committees discuss together about convergence of
each transport regime. Transition to complete match of both directives is planned.
Status of the railway companies in legislation scheme
After start of liberalization in railway transport processes the railway companies
change some of them usual habits. Also nongovernmental organization had changed their
position on the transportation market. There are now stronger than before. Because the
railway companies haven’t strong governments behind them, there are alone now. So they
must find out way how to be strong in positions at global liberalized transport markets. And
also position of railway transport has changed in Europe. It’s much bigger but in so many
causes uncompetitive to other modes such as road transport. So we have some special
organization for example AIEP/ IVA which has transformed to Cargo Rail Europe (CRE) –
this organization has agenda of sidings (especially development of sidings which support
transport of single wagon load). Another example is House of Rail, which has agenda of fully
relevance of railway EU legislation in purpose of better functionality of railway in general. Or
other groups for better functionality of railways - JSG – Joint Sector Group (which agenda is
effort to address matters such as the minimum requirements for infrastructure maintenance
and vehicle inspection Catalogue vehicle tracking - EVIC, EWT) or UIC - International
Union of Railways (technical standards); UIRR - International Union of Combined Road –
Rail Transport Companies; UNIFE – Association of the European Rail Industry; ERRAC –
The European Rail Research Advisory Council; UITP – International Association of Public
Transport; ERWA – European Railway Wheels Association; GRB – Group of Representative
Bodies (brings together all the main organizations to have their activities coordinated). From
11
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 the point of customers needs there are some organizations like ERFA – European Freight
Customers Platform; F&L – European Freight and Logistics Leaders Forum; UIP –
International Union of Private Wagons; IBS – Interessensgemeinschaft der Bahnspediteure
(an association of rail shippers). CLECAT – European association for forwarding, transport,
logistic and customs services; ECA - European court of auditors; FERRMED - Freight Rail
Great Axis Scandinavia-Rhine-Rhone-Western Mediterranean; EIM – European Rail
Infrastructure Managers; ESC - European Shippers Council; Xrail (single wagon loads);
Asstra (association of local public transport companies and rail transport undertakings);
Assoferr (association of intermodal and rail operators); Fercargo (association of rail freight
transport companies); TAPA worldwide (facing the problem of cargo crime within the
transportation supply chain); TAPA AMERICAS; TAPA EMEA (Europe and Africa); TAPA
APAC (Asia/Pacific); ECM (Entity in Charge of Maintenance) - National Vehicle Register
(NVR); The Group of Representative Bodies (GRB); The European Passenger Train and
Traction Operating Lessors Association (EPTTOLA) – leasing company that brings together
the leased a car carrier operators; ERA - European Railway Agency - safety and
interoperability; CTG Coordination Technical Group; EFRI (IFRF) - European Flame
Research Initiative; EFRI - European rail freight initiative. ERC - European Rail Circle
(shareholders platform for the exchange of information and lobbying for improved railroad
name, because the promotion by customers); ERFC - European Rail Freight Customers; ETF European Transport Workers Federation; T&E : Transport and Enviroment- European
Federation for Transport and Environment (lobbying efforts for sustainable transport in terms
of
ecology);
CEFIC -
The European Chemical
Industry
Council;
EPCA –
The European Petrochemical Association; ESC - The European Shippers' Council; EIA –
The European Intermodal Association; NEWOPERA – TIGER, MARATHON projects - the
providers of rail freight. And many and many others (but very important) AEIF; CER; CIT;
COLPOFER; FIP; FISAIC; FTE; ICF; INTERUNIT; OSJD; RAILDATA; RNE; UIC;
UIMC.... It’s very difficult to mention all of them. We can make a conclusion like this – the
railway transport has so many problems in many ways in many questions (interoperability,
transportation law, technical problems, technical solutions…) so there are many unions,
federations, groups, organizations which are established to sole some problems or protect
some honest customers, transporters, forwarders… Make agreements, rules, own instructions
or regulations to reach their goals. But the main idea is to be a competitive to other land
transport modes and be successful in providing quality service to customers.
12
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 Figure 8: The scheme of participants in the carriage of dangerous goods – direct impacted
participants and indirect impact participants.
Conclusion
Regulations and rules in compliance with elementary enactments of Slovak republic
harmonized with legislation of EU are in force for railway transport in Slovak republic. As
Slovak republic is member state of RID, these rules are in force and have priority in
application. It can be stated, that it is supreme directive above all others and it is structured on
the base of model rules of Orange book. General enactments regulating railway transport
513/2009 and 514/2009 and also directives and regulations of EU are referring to RID. In
RID, there are references on specific standards and more detailed regulations for concrete
group of goods. However, the fact of general axioms of railway transport operation has to be
taken into account. That means to take into account specific regulations of infrastructure
manager and technical specification for railway vehicles (TSI), etc. Within general policies of
function and regulation of business environment and business competition, also these legal
regulations have to be taken into account: Constitution, Civil code, Commercial code, etc.
Enactments regulating transportation and liquidation of wastes are in force as self-standing
directives, which are implemented into national legislation. Transport law is regulated
especially by the rules of Vilnius Protocol from 1999 (i.e. novelized COTIF) and the rules of
OSJD, i.e. SMGS, PGV, etc. At the beginning and at the end of supply chain, the main
13
Doprava a spoje –elektronický časopis Fakulty prevádzky a ekonomiky
dopravy a spojov Žilinskej univerzity v Žiline, ISSN 1336-7676 element of regulation is GHS and other directives on this base (CLP), as well as safety
directives (SEVSO, directives and rules for safety at work).
Figure 9: Arrangement of most important legal regulations for the purpose of railway
transportation and realization of dangerous goods transportation.
Literature:
[1] http://www.unece.org/
15.09.2012
[2] http://osjd.org/
28.08.2012
[3] http://www.uiprail.org/userfiles/file/n90301%20introduction%20to%20House%20of%20
Rail%20(2).pdf
27.09.2012
[4] http://www.un.org/en/ecosoc/
16.05.2012
[5] http://uic.org/
21.07.2012
Referee:
Ing. Martin Kendra, PhD., Žilinská Univerzita, Žilina
st
Enter to publishing: October 1 2012
14