Last reviewed 23 May 2019
In this feature article, Consultant Editor, Caroline Raine discusses the impact on the transport of dangerous goods in the wake of the expected UK departure from membership of the EU.
Many of the goods exported from the UK, and carried within the UK, are dangerous goods. Industry may, therefore, be considering the implications in the post-Brexit period. This article summarises how dangerous goods are currently controlled, any changes that may be required, and any opportunities to reduce the demands on business in this period.
For international trade — whether to the 27 remaining EU Member States or to any other country, the status quo will remain as it is today.
The legal requirements of the International Civil Aviation Organisation (ICAO) Technical Instructions and the contractual additional requirements of the International Air Transport Association (IATA) Dangerous Goods Regulations (DGRs) will continue to apply. The UK will remain as an independent state representing its own interests at the ICAO meetings.
For sea, the requirements on the International Maritime Dangerous Goods (IMDG) Code will continue to be applicable. The UK will remain as it currently is as an independent state with its own membership of International Maritime Organisation (IMO).
Here again, the expectations are that the UK will continue to apply the requirements of the ADR (in French “L’Accord européen relatif au transport international des marchandises dangereuses par route”; from which the acronym ADR is taken) and RID. ADR is the European Agreement concerning the International Carriage of Dangerous Goods by Road. RID is the Regulation concerning the International Carriage of Dangerous Goods by Rail.
Both ADR and RID are international agreements. The United Nations Economic Commission for Europe (UNECE) is responsible for both pieces of legislation and the UK is signatory to both ADR and RID which makes them mandatory by the UK. For ADR meetings, the UK is listed as an Expert member (with voting rights), with the EU Commission as a Governmental Organisation observer (without voting rights).
UN Purple and Orange Books
It is expected that the UK will continue to be represented as an independent nation as an expert member of the United Nations Sub-Committee of Experts on the Globally Harmonised System (UNSCEGHS), which deals with classification issues, and the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCETDG) which applies the appropriate Globally Harmonised System (GHS) classification and hazard communication rules for transport and then deals with other related matters such as packaging and tanks and gas receptacles, documentation, etc.
Also the UK will remain an independent state expert member of the UN Committee of Experts on the Transport of Dangerous Goods (UNCETDG) and on the GHS of Classification and Labelling of Chemicals, the body that oversees the work of the two sub-committees.
Here the situation is more complicated.
In the 1970s, 1980s and until the mid-1990s, the UK made domestic carriage requirements, but based these primarily on the UN Orange Book provisions. So, for example, higher flash point diesel was not regulated as dangerous goods — unlike the situation under ADR/RID.
When the EU Commission transport Directorate took an interest in transport of dangerous goods issues, things began to change, with higher flash point diesel becoming regulated from 2004 under the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2004. This was as a result of the requirements of the Council Directive 94/55/EC on the approximation of the laws of Member States with regard to the transport of dangerous goods by road and Council Directive 96/49/EC regarding rail carriage.
The current situation pre-Brexit is that under the Directive 2008/68/EC — inland transport of dangerous goods (ITDGD) — the UK is basically obliged to apply ADR to domestic as well as international carriage.
Though there are derogations in the ITDGD that permit the UK to require tank and bulk carriage to show the Emergency Action Code (EAC) rather than the Hazard Identification Number (HIN). There is also a UNK requirement to have an emergency response telephone number on tanks.
In order to obtain certain other domestic UK derogations (as listed in the UK’s Approved Derogations and Transitional Provisions (ADTP) — such as the retail distribution relaxation and the immediate vicinity relations), the UK has to apply to the EU Commission and effectively get approval from other EU Member States before these can be applied.
Once the UK leaves the EU, it will be no longer bound by the requirements of the ITDGD. The UK arrangements are outlined in The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (as amended) and the UK Approved Derogations and Transitional Provisions (ADTP).
Post-Brexit — but EFTA/EEA
In this scenario, the UK negotiates to become a member of the European Free Trade Association (EFTA). EFTA is an intergovernmental organisation set up for the promotion of free trade and economic integration to the benefit of its four Member States: Norway, Iceland, Lichtenstein and Switzerland.
In this case, it is likely to also want to become part of the Agreement on the European Economic Area (EEA) (that includes all EU Member States plus Norway, Iceland and Liechtenstein, but not Switzerland) in order to get access to the single market. However, it may be that the political price (free movement within the EEA) will be too high a price to pay?
Should the UK become an EEA member then ITDGD will continue to have to be applied, so no change from the current situation will occur; but UK legislation (see below) will need to be tweaked.
Should the UK try and go separately as an EFTA state only, like Switzerland, then the UK will be free from any constraints that it feels are imposed by the ITDGD.
Post-Brexit outside EEA
In this scenario, the UK would be free from any additional obligations resulting from the ITDGD, but only such obligations as it feels appropriate under its involvement at UNSCETDG and in relation to ADR/RID.
Legislation changes — post-Brexit
Consequently, even if the decision is basically to remain with the status quo, the chances are that for technical legal reasons, there will be a need to re-cast Carriage of Dangerous Goods and Transportable Pressure Equipment Regulations 2009 (SI 2009 No. 1345) (known in short as CDG2009), as amended, and the equivalent Northern Ireland (NI) Statutory Rules. And in fact, the Department for Transport (DfT) are currently drafting these new regulations.
While, as always, the proposed changes, when consulted, should be carefully examined to ensure that they do what is intended, and introduce no untoward consequential issues and concerns.
The chances are that for the transport of dangerous goods, there will be no changes to requirements concerning the practical aspects to the domestic and international carriage of dangerous goods as a consequence of Brexit. Also that the UK’s acknowledged expertise and contribution to the maintenance and updating of the provisions will continue to be felt. The only change will be an updated version of the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations.