As a Member of the Public, What Do I Do When I Have the Need to Ship Dangerous Goods?

A recent post, that has sparked a lot of debate in some of my circles, has led me to do a bit of digging into the American 49 CFR and Canadian TDG Clear Language Regulations. Please accept my apology ahead of time for not being able to give definite “thumbs-up” or “thumbs-down” general rules. There just isn’t anything in the Regulations that lists out every possible scenario. Here is what I’ve found so far:

What do the Regulations Say Regarding Training?

USA: Section 172.700 references “employees”.
49 CFR – 172.700(a) Purpose. This subpart prescribes requirements for training hazmat employees.

Canada: Section 6.1 references “a person”.
TDG CLR – 6.1(1) A person who handles, offers for transport, or transports dangerous goods must…

In Canada

Although in Canada, it is generally employees in companies that will be shipping dangerous goods, the Regulations are written to discuss dangerous goods that get transported on public road by a vehicle such as a truck. A few of the exemptions found in Part 1 of the TDG CLR exempt people from the requirement for training. When shipping dangerous goods in limited quantity (TDG CLR 1.17) or when driving small amounts to or from a store (TDG CLR 1.15), a member of the public must still follow the exemptions, but does not require a training certificate as proof of training.

In all reality, when driving small amounts of dangerous goods to or from a store, many members of the public may not be aware that they are taking advantage of the 1.15 exemption. That doesn’t mean that they are free to just drive whatever they want. The exemption actually has a maximum gross weight allowance of 150 kg and can only be used for dangerous goods that are in a quantity or concentration available to the general public and are transported either by a user or purchaser of the dangerous goods, or by a retailer to or from a user or purchaser of the goods. Long story short, this is to be used for low weights of dangerous goods that are available to the general public and this is not something that can be used when sending with a courier.

That brings us back on track to our main topic of customer returns. When we’re discussing item returns from a consumer, we’re not concerning ourselves with someone driving his or her tiny amounts of dangerous goods back to the store for a refund. What we’re really concerned with is shipping with a courier. It’s worth mentioning again that in Canada, there is that Limited Quantity exemption that can also be taken advantage of. So long as the shipment is only to be going domestically by ground, and it meets the requirements of TDG CLR 1.17, small amounts of dangerous goods can be shipped without proof of training. The shipper (or consumer sending a return) would still be responsible to make sure that the shipment was prepared properly which would mean consulting various sections of the TDG CLR. Recall that if one was to consider any fully regulated shipments, any person handling or offering for transport (like a consumer sending a return) must be trained and have a training certificate to prove it.

Now, Back to the USA…

If we look at what hazmat is (hazardous material), according to the definitions section (49 CFR – 171.8) it is defined as posing some risk when transported in commerce.

What does that mean!?

When discussing this with a colleague, we wondered even how this relates to consumers buying something from a store and driving it home in their own vehicles. In Canada, there is an exemption in 1.15 where training is not required. The United States has a similar Limited Quantity exemption, but training is required in order to use that. In the United States, does a member of the public who drives home some dangerous goods from the store fall outside the scope of commerce? Perhaps the definition is that once a customer physically has the goods, he or she is no longer considered as being in commerce. It might be worth asking the DOT for an interpretation on how people driving hazmat to and from the store are acceptable. Perhaps it is as simple as being outside of the scope of the Regulations?

This doesn’t get us off the hook for customer returns though because a customer sending back a product would probably be defined as putting the hazmat back into the flow of commerce since the customer does expect some sort of refund for the product.

Case-by-case

We’re now at the point in this blog where I’m going to sort of cop-out. I don’t really know how one can make a general statement about what is allowed for customer returns. My understanding is that the topic would have to be addressed on a case-by-case basis.

When reaching this point in my conversation with a colleague, we tried to rationalize things by saying that there should be very very few times when a shipment of dangerous goods or hazmat would be accepted by a carrier when it shouldn’t be allowed. Surely they must screen for this sort of thing? Of course there is screening process and there are many shipments that get rejected for not having the proper labelling or documentation. My colleagues and I often work with air carriers so we’re familiar with various screening techniques, x-ray being a good one to mention.

If a member of the public were to go to a large courier and try to ship a dangerous goods package, it would likely be rejected when screened. For example, someone who goes to ship something that is identified only as “camping equipment” will have more questions asked. Even though to a member of the public, this might just sound like a tent, sleeping bag, and some marshmallows, the courier is aware that there are several possible hazards that might have slipped into the shipment without being considered by the shipper. The little fire starter bricks (Class 4.1), propane camping fuel (Class 2.1), flares (Class 1), and various other items are dangerous goods for transport.

…but the whole reason we’re discussing this topic is to address those few instances that aren’t regular shipments. What happens when a member of the public actually manages to ship a dangerous goods package⁰ Further to that, what are the consequences if there is an incident that results from that shipment?

That’s where this comes back to the answer of “it’s case-by-case.”

In Canada, even if the shipment didn’t have a problem, Transport Canada could still request proof of training from the individual who shipped the package. If that could not be presented, likely the next step would be a cease and desist order to the individual. Now, if there were to be an incident, again, it’s case-by-case. Tickets or fines can be issued based on the specific situation, even to members of the public who were just trying to make a return. I imagine that there are similar measures in place in the United States, but that is less in the realm of my experience and knowledge (so I’d be interested to hear and learn more about that avenue in the comments).

Let’s look at what might happen to cause a situation where a member of the public would need to send dangerous goods or hazmat in the first place.

Probably the consumer got something he or she didn’t want, maybe by fault of the company that sold it to him or her, but also maybe by his or her own fault or mistake. Regardless of why the error happened, probably the next step after realizing that the consumer had the wrong goods is some contact between the consumer and the company that sold and shipped the goods. This is where it really could get muddled.

From a customer service point of view, the company may be encouraging to the consumer in trying to be as helpful as possible to want to help in sending the shipment back. The individual employees at the company may even want to help with the shipment and offer to take liability for the return. If there was an incident with the shipment, I can’t foresee any company’s legal department wanting to take responsibility for the shipment. They might even argue that the TDG Act actually states in section 5(a) that no person shall offer for transport any dangerous goods unless the person complies with all safety requirements and security requirements that apply. It sounds like this is getting pinned on the individual who actually shipped this.

I had a client recently ask me how he could ship his defective lithium batteries back to the manufacturer so he could get a replacement. Upon questioning him as to why he wanted to ship the defective batteries (because let’s be honest here, no one “wants” to ship defective lithium batteries), he informed me that the manufacturer requested them to be returned. I don’t know what is going to come out of his scenario, but I explained to him some of the things that must be considered, such as:

1. Care must be taken to ensure that the batteries don’t get shipped by air
2. Since his shipment would be crossing from Canada into the USA, he would want to consider the rules on both sides of the border
3. There would be substantial cost compared to the initial cost of his battery and that really doesn’t seem like a good idea
4. If the batteries were damaged such that they may catch fire during normal transport conditions, he can’t send them by ground anyways!

Long story short, he really should figure out another way to get his refund or replacement.

In Closing

I’ll leave off with this. In Canada, we have an exemption for the people in National Defence (found in TDG CLR 1.20). Essentially, the Minister of National Defence can choose for the Department of National Defence to do whatever they want when it comes to transporting dangerous goods … but they don’t! In speaking with several people at the DND, I’ve found that they have the right attitude. They want to follow the Regulations as closely as possible because they realize that the reason we have them is to keep people safe. The whole reason that we do any of this is to keep people safe. Now for the rest of us, we couldn’t do whatever we want anyhow, but I encourage everyone to take peace-of-mind knowing that the reason we go through everything is for the betterment of everyone. Even on the days when something sounds difficult or expensive to do properly, consider the ramifications of a problematic shipment.

In writing this article and thinking about this topic, I’ve come to realize that many of the problem shipments stem from situations where people don’t ask for more information. When I discuss shipments of dangerous goods or hazmat with clients, I try hard to backup the information that I give with references from the Regulations. That helps educate people. Reading through the actual regulations, instead of just using word-of-mouth, is a great way to show that you are doing your due diligence to send dangerous goods or hazmat safely. If consumers were more enlightened to what the rules are, perhaps some of the desire to return a dangerous good could be eliminated. In the defective battery scenario I mentioned earlier, I would highly encourage the company to just write off the battery and not request its return.

If you need to ship some dangerous goods or hazmat and don’t know what is involved, reach out to ICC for help.