Consignors beware – transportation of dangerous goods by road

The deadline for parties who are currently only acting as consignors of dangerous goods – because they send dangerous goods to others or because they are consignors under the terms of a contract - must, from 1 January 2023, have appointed a Dangerous Goods Safety Adviser (DGSA).

It is not uncommon for vehicles carrying goods to be involved in incidents in which their cargos spill onto the road, and every so often, stories of such incidents make their way into the news. A recent example of such an incident was when the BBC reported on 22 September 2022 that a Florida highway was blocked by thousands of cans of beer after a crash involving five semi-trailers. Fortunately, only minor injuries were reported, with the highway re-opening after several hours.

Incidents like this can cause significant disruption to everyday life. However, should a vehicle transporting dangerous goods be involved in an incident the outcome could be much worse than a mere disruption. The effects could be catastrophic for individuals, property and/or for the environment. This was one of the driving forces behind the existing Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) Regulations (the Regulations) requiring a DGSA for businesses selling and transporting dangerous goods by road. From 1 January 2023, however, the Regulations will also require consignors to appoint a DGSA.

Dangerous goods

Dangerous goods are separated into nine different classes of goods, which include the obvious: explosive, flammable and toxic goods; but also include the not-so obvious: organic peroxides, infectious goods and oxidising goods. A full list of dangerous goods can be found here.

Dangerous Goods Safety Advisor

A DGSA bears the responsibility for minimising the risks to people, property and the environment involved in the carriage of dangerous goods by road. They will be responsible for, amongst other things:

• Monitoring compliance with the Regulations.
• Advising their business on the transport of dangerous goods.
• Investigating accidents or infringements of the Regulations.
• Reporting incidents to the Department for Transport.
• Reporting to management on the business’ transportation of dangerous goods.

As with many other types of ‘competent persons’, the DGSA can be an internal member of staff who has been suitably trained as a DGSA, or it can be a third party who provides DGSA services.

Exemptions

Although the Regulations cast the net wider for those having involvement in dangerous goods, the Regulations are not absolute and there are certain exemptions including situations where businesses:

• Only do it occasionally, for example, breakdown recovery vehicles.
• Have ‘limited quantities’.
• Are moving them a very short distance by road, for example, between buildings on an industrial estate.
• Are using private vehicles.

A full list of exemptions can be found here. 

What is changing?

At present, the Regulations only capture businesses involved in the picking, packing, filling, loading, unloading and transport of dangerous goods. However, from midnight on 31 December 2022 it will also be a legal requirement for businesses carrying out ‘consignment only’ of dangerous goods to have a DGSA appointed. Failure to appoint a DGSA, unless exempt, will result in a breach of the Regulations, and the business will not be able to continue its involvement with the dangerous goods. Any business failing to appoint a DGSA when required by the Regulations may be prosecuted under the Regulations and may also be in breach of Section 2 or Section 3 of the Health and Safety at Work Act 1974 (HSWA), namely failing to ensure the health and safety of employees and non-employees in connection with the use, handling, storage and transport of articles and substances.

Enforcement and convictions

In 2021, the Health and Safety Executive (HSE) register of notices reported 539 notices by the Police, DVSA and Department for Transport for breaches relating to the Carriage of Dangerous Goods. Examples of convictions for offences relating to the Carriage of Dangerous Goods are scarce at present.

The most recent example provided on the HSE database is from 2017 where a liquified petroleum gas (LPG) service provider was convicted under the associated Regulations and a breach of Section 3 HSWA. The conviction arose after an unsecured LPG vessel ignited causing serious injury to an employee. The investigation found that the delivery posed a significant risk of fire and explosion on the highway and a fine was imposed on the company.

Although this example does not relate directly to the appointment of a DGSA, we may very well see the lack of appointment featuring in future cases involving the transportation of dangerous goods, especially where an injury or fatality arises.

Related item: Crime and Regulatory roundup – December 2022

Read other items in Crime and Regulatory Brief - December 2022