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Past Issues

August 2005

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Getting to grips with what's afoot in terms of new DG legislation is a bit like playing 'blind man's buff' - you know there's stuff out there but you're not sure where exactly or when it's going to hit you. FleetWatch asked Keith McMurray, a veteran of the DG industry and a DG Legislation Advisor, to pinpoint the problem areas around the ongoing transformation of DG Legislation.

The legislation covering the transportation of Dangerous Goods can be considered to be in two parts, namely: the visual display and requirements of the vehicle transporting dangerous goods and the less obvious (hidden) requirements such as: statutory insurance, route planning, emergency responder notification, training of qualified persons, loading and offloading procedures and operational agreements.

The vast majority of policing, thus far, has concentrated on the requirements of the vehicle while the hidden requirements have been subject to a single court case. I don't believe that anyone is in a position to comment on the levels of compliance but like most, I also feel that the percentage of non-compliance, given the hidden compliance requirements, is greater. 

In looking behind the legislation, one must ask: Where is the Dangerous Goods Inspectorate? This legislation was promulgated in 2001 and still we have no inspectorate operating. Traffic officers are enforcing the DG laws in certain areas but this enforcement concentrates on operator registration, placarding and documentation. 

A number of incidents involving classified goods and substances have taken place in the last four years. How many prosecutions have resulted in terms of contravention of the hidden requirements of Chapter VIII of the National Road Traffic Act 93/96?

Regulation 117(e) of the Act indicates that drivers of heavy vehicles applying for a professional driving permit category "D" will, from a date to be determined by the Minister, need to hold a training certificate in terms of Regulation 280 of the Act. At the time of writing, this date is yet to be determined. Drivers need to be trained in terms of the incorporated codes but no accredited training is in place to cater for this permit requirement.

Created confusion
The incorporation of the SANS/SABS codes in the Act has, with hindsight, in my opinion, created a great deal of confusion and misunderstanding in the minds of the relevant parties in complying with the legislation. Revisions and amendments to the codes since promulgation compound this situation. When a code is amended or revised, the law is immediately changed.

In the space of four years, the DG industry has had to deal with changes to the classification and identification of dangerous goods, design requirements for all heavy vehicles transporting dangerous goods and compatibility issues. To further complicate matters, the industry is about to have to accommodate a new operational and emergency information code. The operational code will differ fairly radically from the existing code.

Much of the information in the codes overlap and the publication of revisions and amendments to codes in isolation tend to create confusion. This has happened with the publication of SANS 10228 (Classification and Identification of goods and substances) which refers to terminology in a packaging code (SANS 10229), the revision of which has yet to be published. It also refers to goods and substances which are not listed in other codes for exempt quantities and emergency response guides.

It would appear that the revision of SANS 10231 will be published before the revision of SANS 10232 Part 1 and this situation will create major difficulties, because of the duplication of information which will differ between the existing SANS 10232 Part 1 and the new revision of SANS 10231. 

During the course of the last round of legislation workshops conducted by Alta Swanepoel, an appeal was made to both the National Department of Transport and the South African National Standards to recognise this problem and ensure that revised incorporated codes are published simultaneously. 

As indicated, in terms of Section 76(4) of the NRTA 93/96, if any standard is, at any time after the incorporation thereof in the regulations, amended or replaced, then that standard is deemed to refer to the standard as so amended or replaced. This means that any changes are immediately law.

SABS 1518 and SABS 1398 were the design codes for bulk tankers originally incorporated when the legislation was promulgated. These codes applied if a vehicle to which they applied was registered for the first time on or after 1 October 2001. 

Codes replaced
The above codes have been replaced with SANS 1518 Part 1 and Part 2 which means that the new codes, in terms of Section 76(4), are a legal requirement. The problem with this requirement is the fact that Part 1 covers requirements for all heavy vehicles transporting dangerous goods, which includes packaged goods vehicles, which were not subject to requirements before the publication. No effective date was published, so the probability exists that the majority of packaged goods vehicles, above 3 500 kg GVM, transporting dangerous goods are not compliant with the design requirements. 

Discussions have taken place at SANS and recommendations have been made to replace Parts 1 and 2 of SANS 1518 with one document. The new document will use the ADR (European agreement covering the international carriage of dangerous goods by road) requirements as our local minimum requirements for the design of dangerous goods road vehicles and portable tanks. Although the design requirements might not change dramatically, this type of situation causes confusion. 

It is easy to point fingers at the relevant parties who have to be compliant with the legislation and assume that they choose to ignore the requirements - and the possibility exists that this could be the case. However, anyone who consigns, receives or transports dangerous goods must understand the consequences of that decision. The implications of vicarious liability, repudiation of insurance claims, contravention of the National Environmental Management Act, the Occupational Health and Safety Act and the other legislation in Chapter VIII is surely motivation enough to suggest that consignors, operators and consignees will make the effort. 

Questions are asked about awareness. Associations such as the Chemical and Allied Industries Association, Road Freight Association and the Agricultural Distribution Association have been conducting workshops since before promulgation of the legislation. Major players in the paint industry, waste industry, courier industry, explosives industry, retail industry and the adhesives industry, have all facilitated awareness programmes.

Johannesburg University (RAU) implemented a course on the legislation even before promulgation. Fleetwatch has published many articles on Dangerous Goods legislation. It is difficult, therefore, to accept that manufacturers and suppliers of classified substances are unaware of their duties in terms of the legislation.

Operators should, by now, be asking for confirmation of goods and substances being loaded in order to ascertain the status of the loaded goods and if classified as dangerous, initiate the duties and responsibilities of the parties, if the quantity transported exceeds the exempt quantity permitted.

In summary, the development of the Dangerous Goods Inspectorate, together with improved law enforcement, will help level the playing fields and encourage compliance. However, we also need to allow the legislation to settle in, to avoid the present difficulties experienced by those who have to comply because of the continual changes to the legislation.