WHMIS 2015
WHMIS 2015 Update – Ontario Joins the Fold

UPDATE – The June 29 Canada Gazette II contains the Federal Canada Labour Code adoption of WHMIS 2015 into the various CLC OHS Regulations (SOR 2016/141).

The amendments are effective immediately with an employer operating transition period until Nov. 30, 2018 – i.e. WHMIS 1988 or WHMIS 2015 may be used for products in/entering the workplace.

WHMIS 1988 may be used for products already present in the workplace at Dec. 1, 2018 until May 31, 2019.

Details can be found:
http://www.gazette.gc.ca/rp-pr/p2/2016/2016-06-29/html/sor-dors141-eng.php

Watch our Blog site for more information


Formal Transition to WHMIS 2015

July 1st Ontario begins the formal transition to WHMIS 2015- Ontario Gazette June 25, 2016 –O.Reg. 168/16 amends O. Reg. 860

Ontario employers must prepare to convert their workplace programs to WHMIS 2015 during the period from July 1, 2016 through May 31, 2018. Stock under WHMIS 1988 already in the workplace may continue to be used until Nov. 30, 2018. Product received under WHMIS 1988 must comply with supplier labeling requirements (e.g. hatched borders/symbols) and MSDS requirements (e.g. 3 year “expiry” date) under the WHMIS 1988 (CPR) regulations.

Introducing new products under WHMIS 2015 will require training workers in WHMIS 2015 before they are used.

This information is referenced in the amended O. Reg. 860 s. 25.1 “Transition”; and the enforcement policy as last reviewed December 2015:

https://www.labour.gov.on.ca/english/hs/faqs/whmis2015.php

ON OHS ACT

As before, the majority of details are contained in the amended O. Reg. 860 (WHMIS) under the ON Occupational Health & Safety (OHS) Act. However readers are reminded that Part IV “Toxic Substances” of the OHS Act itself, deals with WHMIS issues in s.37-41.

In addition to the requirement to the general requirements in making available SDS to the workplace parties, the amended OHS Act requires making them “readily available to those workers who may be exposed”. The same section (38) also clarifies that SDS may be in an electronic format, while stipulating that the JHSC/Rep must be consulted on the means of making them available. Instruction and training requirements remain unchanged from the existing provisions in s. 42(3).

O. REG. 860

O.Reg. 860 has modified the definition of hazardous waste (subject to workplace labelling) to include that which is “acquired or generated” rather than “sold” for recycling or recovery. In keeping with the “may be exposed” in SDS provision in s. 38 of the Act; s. 6.(2) of O. Reg. 860 requires education of “workers who may be exposed…” rather than only those who work “in proximity”.

The revised s. 17(1) appears to remove some (not all!) of the responsibility from the employer to research for new information, presumably due to the potential reduction in ingredient disclosure presented by the elimination of the Federal IDL. Also the obligation to solicit an updated – i.e. “current” SDS is no longer in O. Reg. 860 (This contrasts with other jurisdictions- e.g. BC, NT-NU, YT- where the employer is expected to check the status of a 3 year old SDS with the supplier.).

FPT STATUS RUNDOWN

As most readers are aware, Canada’s 2 –tiered constitution results in a division in workplace hazard communication regulations. The Federal government, via Health Canada establishes the requirements for manufacturers, importers & distributors to have (among other things) the information available for employers to have to use in their hazard communication programs- but what employers are required to do with the information depends on the jurisdiction of each particular workplace.

Consequently full implementation of WHMIS 2015, incorporating elements of the GHS, requires each province, territory and (for workplaces governed by Federal jurisdiction) Labour Canada to amend the hazard communication regulations that apply to their workplaces.

Since the adoption of the amended Hazardous Products Act/new Hazardous Products Regulations (“WHMIS 2015”) in February 2015, five provinces and the territories have amended their occupational health & safety (OHS) Acts/Regulations to harmonize with the Health Canada WHMIS 2015 provisions.

QC, BC, MB, NB (provinces) & NU/NT, YT (territories) all amended their regulations effective between June 2015 (QC) & April 2016. Ontario’s amended OHSA & WHMIS Regulation were published earlier in June, to take effect on July 1, 2016.

At the time of writing, SK & Labour Canada have published draft amendments which have yet to finalized/adopted; while AB, NL, NS & PE have yet to circulate their proposed amendments.

While, in the majority of cases, the changes largely recognize basic changes in terminology (i.e. references to SDS, HPR, updated HMIRA, etc.), some changes will require employers to re-visit training, availability of SDS and workplace labeling. Representatives from Health Canada, the Federal/Provincial/Territorial (“FPT”) partners and other stakeholders have developed a “model” WHMIS regulation which is intended to form the basis for all FPT workplace regulations.

The common elements deal with use of Health Canada mandated labels/SDS as the primary hazard communication vehicle- supplemented with the education, training and labelling required for effective protection of workers in FPT workplaces. This model (as with other “harmonization” processes!) still allows for variances among the final FPT regulations for application within the regulatory schemes in use.

Employers should also remember that products “exempt” from the WHMIS supplier label/SDS requirement still usually require workplace hazard identification/communication when decanted (or “transfilled”) into other containers.

Readers are advised to verify the status of WHMIS 2015 regulations in their jurisdiction.

OSHA Flammable
Fertilizers as Dangerous Substances – Lest We Forget (Again)

West, TX – April 17, 2013

As we approach the third anniversary of the catastrophic explosion involving ammonium nitrate fertilizer in West, TX, the US Chemical Safety Board (CSB) recently released the final report of their investigation into the disaster.

On April 17, 2013 during a fire at a fertilizer storage and distribution centre, a town was devastated when about 30 tons of fertilizer grade ammonium nitrate (FGAN), from a stored total of 40-60 tons, exploded.

Dangerously Close

The CSB conclusion examined the lack of awareness of the general hazard properties of ammonium nitrate (AN) on both the storage arrangements for the FGAN; and the response of emergency personnel to the incident. A related factor in the devastation was the gradual encroachment of residential/institutional property uses to the distribution facility. These failures resulted in the deaths of 15 people, including 12 emergency responders.

A video reconstructing the incident is available from the CSB »

In Spring a Growers Fancy … Turns to Thoughts of … Fertilizer
(with apologies to Alfred, Lord Tennyson)

Nitrogen is one of the four essential nutrients; along with hydrogen, oxygen and carbon; for the plants that are essential to human nutrition. Plants obtain hydrogen, oxygen and carbon fairly easily from carbon dioxide and water.

Nitrogen, however, is rarely found naturally in a form that can be used directly by the plants in quantities conducive to producing a viable food source. Often the form most efficiently consumed by plants, practically available for crop production, is found as either ammonia or ammonium nitrate.

Both of these ingredients have uses other than as crop nutrients – e.g. refrigeration, cleaning, pollutant scrubbing, etc. for ammonia; and explosives (UN0222), cold packs, etc. for AN.

Due to its pungent odour in all applications, ammonia hazards are fairly obvious to most people dealing with it. (Some of the initial reports emphasized the anhydrous ammonia at the facility- although ammonium nitrate turned out to be much more deadly).

Even in transportation, there is a requirement to signal the inhalation hazards associated with the anhydrous (commonly used as a soil-injected fertilizer) ammonia. Despite this, there are fatalities all too often resulting from anhydrous ammonia exposure (viz a worker in Medicine Hat, AB in December when a valve opened after being accidentally struck by a piece of equipment during a weatherproofing operation.

FGAN, on the other hand, seems to be of lesser concern to a broader population despite its classification as an oxidizer (UN2067) or conditionally as a Class 9 miscellaneous substance (UN2071). There is a fine line between the physical form/composition sold as fertilizer and the transformation to an explosive when the form changes or there is the addition of fuel components.

History has shown the result of failure to recognize the basic potential of AN to explode in a variety of cases (excluding explosives factories/terrorist activities) involving transportation or storage of what was considered FGAN. Not the least of these is the April 16 (!) 1947 Texas City incident which resulted in 581 fatalities (including 27 first responders on the scene) when 7000 tons FGAN on board a vessel exploded; or a fertilizer storage incident in the Loire district of France in 2003 when a barn fire involving 3-5 tonnes of FGAN detonated injuring 26 people. Fortunately there were no fatalities in the latter incident.

http://www.texascity-library.org/disaster/first.php

http://www.aria.developpement-durable.gouv.fr/wp-content/files_mf/FD_25669stromainenjarez_2003_angl.pdf

Resources are Available

Hazards of AN are extensively covered under explosives, marine cargo, rail and various environmental/safety regulations. Reputable suppliers of the products put considerable effort into the quality of information on SDS, not just for FGAN, but for other nitrate-containing fertilizers (e.g. urea ammonium nitrate- UAN, which may not be “regulated” in the form used as fertilizer, but none-the-less present similar hazards during a fire).
Fertilizer associations in both the US and Canada have established codes specifically addressing FGAN storage and handling that include concerns regarding the transition of FGAN to an explosive (the same organisations also provide Codes for the safe handling of anhydrous ammonia).

https://www.tfi.org/safety-and-security-tools

http://fertilizercanada.ca/safety-security/

Despite the fact that there are a plethora of regulations around industrial grade AN, all too often the relation of FGAN to these hazards is not well known outside of the directly-regulated community. This was a finding in the St. Romain-en-Jarez (Loire) incident in 2003 and was heavily emphasized in the CSB report of the West incident in 2013. In fact, among its recommendations the CSB recommended the disclaimer “Only Intended for Use When Responding to Transportation Incidents” for the 2016 ERG. Although this specific phrase may not be included, similar wording is expected on the front cover. We can only hope that those relying on this resource recognize that context is key when using any guide.

Read the full CSB report »

ICAO
Lithium Ion Batteries to be “Cargo Aircraft Only”

Download links below.

Lithium continues to cause (as well as alleviate) depression!

IATA, reporting on the Feb. 22 ICAO Council acceptance of the ICAO Air Navigation Commission, has announced that they will be adding an Addendum to the 57th Ed. of the IATA DGR to prohibit shipping Lithium Ion Batteries as cargo on passenger aircraft. This applies only to UN3480 (i.e. batteries alone) prepared under PI 965.

The prohibition will take effect April 1, 2016 (along with other announced changes – state of charge limits, number of Sec. II exemption items/consignment, etc.) and will be in effect for an unspecified “interim” period.

This interim period will probably depend on the conclusion of developing performance-based standards announced earlier (see my previous article).

The notice also includes reinforcing the restriction to PI 965 Section II exempted items to 1 per consignment or overpack; and will add the requirement for a Cargo Aircraft Only handling label for these packages/overpacks.

UN3481 lithium ion batteries packed with/contained in under PI 966 and PI 967 are not covered by the prohibition.

The formal issue of ICAO Technical Instructions 2015-2016 4th Amendment and IATA DG 2016 2nd Amendment, introducing this restriction, are expected by Feb. 26th.

Shippers of lithium ion batteries may have to plan soon for alternate delivery modes if customers are not well served by CAO flights.

The pre-amendment notices can be found here:
Lithium Batteries as Cargo in 2016 Update III (PDF)
ICAO COUNCIL PROHIBITS LITHIUM-ION CARGO SHIPMENTS ON PASSENGER AIRCRAFT (PDF)

[Author Edit]
…and published as “ADDENDUM II” to the IATA 57thEd. DGR- posted February 26, 2016:

Read the announcement and addendum here »

Canada!
“Sea Change” Amendment to TDG Proposed- Criteria Requiring IMDG Code Clarified

Hot on the heels of the Feb. 2 Transport Canada proposed amendment (“Harmonization Updates”) posting, there was another (Feb. 9) proposal for consultation to clarify the intent of Part 11 regarding marine/ferry shipments.

A major result, if the proposal is adopted, will remove the confusion around when the IMDG Code is mandatory for vessel (updated terminology to replace the noun “ship”) shipments of dangerous goods. This issue has been subject to conflicting interpretations from time-to-time; not just among consignors, but also within the transport and enforcement communities.

This difficulty in making a clear interpretation stemmed from the difference in the intent of the term “Home Trade Voyage” in an obsolete version of the Canada Shipping Act which was quoted (perhaps out of context) in Part 11 of the TDGR.
A literal reading implied that essentially all “salt water” voyages could be considered Class I home trade voyages; requiring use of the IMDG Code.

As proposed, shipments by ferry to, for example Newfoundland or Vancouver Island, will likely clearly be under the provisions of the TDGR, not the IMDG Code. This will be of benefit, particularly to shippers of limited quantity/consumer commodity items which should no longer require a formal dangerous goods document or other considerations unique to the IMDG Code.

Short-Run Ferry qualification criteria may also be expanded to 5 km voyages; and restrictions on fuel transport on passenger ferries may be relaxed based on risk assessments/current equivalency certificate experience.

Comments on the proposal are welcomed by Transport Canada until Feb.28 – see:
http://www.tc.gc.ca/eng/tdg/safety-menu-1262.html

Canada!
Harmonization Continues (No, not that one!) – TDGR Consultation Proposal

…or “Preliminary consultation on International Harmonization Updates to the Transportation of Dangerous Goods Regulations”:

Transport Canada, after a busy 2014/2015, has begun a public consultation on proposed amendments aimed at improving the harmonization between the Transportation of Dangerous Goods Regulations (TDGR) and International/US regulations. The proposed amendments will also update referenced standards on classification, packaging, etc.

TDGR Part 8 Reporting requirements will include the ICAO-based requirement for the Air Operator to notify CANUTEC if DG have been discovered to have been carried in non-compliance without proper notification to the pilot-in-command.

Ambulatory References:

A key feature of the proposal is the move towards citing versions of safety standard/requirement documents in Part 1 “as amended from time to time” rather than referring to a specific issue date or revision. This will simplify things for international trade and reduce potential confusion over which edition must be followed.

Canada-US Reciprocity:

In keeping with objectives established in the 2012 Canada-US Regulatory Cooperation Council action plan:

http://www.trade.gov/rcc/documents/Alignment-of-Dangerous-Goods-Means-of-Containment.pdf ;

the proposal seeks to consider allowing the provisions of Canadian Equivalency Certificates (TDGR Part 14)/US Special Permits to be mutually acceptable between the two countries.

While recognizing the potential beneficial aspects of the change for industry stakeholders; there is concern on other potential impacts, such as for the enforcement community.

The proposal also includes provision for authorizing the interchangeable use of gas cylinders and aerosols (TDGR Part 5).

Catch Up:

As part of the proposal to keep the TDGR current, pending implementation of the above ambulatory references, there several areas to be amended to maintain current with UN Model, ICAO and IMDG regulations.

Schedule 1 and 2: A series of entries require modification to reflect changes in (among others): Class 3 temperature control for stabilized (Primary or Subsidiary) Class 3 substances (53 citations to proposed SP 154); introduction of entries for polymerizing substances (Class 4.1, despite including liquids); separation of listings for internal combustion/fuel cell “vehicles” (UN3166) and “engines”/”machinery” (UN3528-UN3530); separation of polyester resin kits into liquid (UN3269) & solid (new UN3527) based; etc.

The Schedule 2 Special Provisions list will expand from 150 to 167 if the proposals are adopted.

Other changes covered in the proposed additions include introducing the new version of the lithium handling label for shipments exempt from UN standardized packaging (presumably replacing the marking requirements currently found in TDGR SP 34(4)) & the new Lithium Class 9 placard.
Note that these are also mentioned in proposed amended text for Part 4.
However, although the latter also references the intent to require use of a ” … CARGO AIRCRAFT ONLY” label, neither the proposed text nor illustration elaborates on this this.

Incidental changes in Part 4 include adopting the new “Fumigation” sign (with provision for indicating “ventilation date” as adopted in July, 2014 Part 4.21) and specifying a minimum height of 12 mm for “Overpack” markings.

Proposed Special Provisions 159 and 160 provide exemptions for celluloid table tennis balls and safety matches, respectively.

Another exemption added to TDGR Part 1 (Special Case 1.50) would provide relief for hot-air balloonists to transport cylinders that aren’t “TC-certified” between launch sites without needing an Equivalency Certificate.

Fishes Breathe (?) A Sigh of Relief:

Schedule 3, in keeping with the current IMDG Code, would expand the list of “P” (Column 4 Marine Pollutant) entries by 70+ items to “facilitate consistent communication on the presence of marine pollutants…for more safe…transportation.”

That’s a Wrap

Apart from some incidental/administrative changes (due to anticipated, for example adoption of the updated version of CGSB-43.125), the balance of the proposal are minor to correct typos and improve the clarity of the (! “Clear Language”, amended 15 times since 2002- albeit not all for clarification) TDGR.

The preliminary consultation on the proposed amendments is open for comment until February 28, 2016. The summary and a request link for the 45+ page proposed amendment is available at:

http://www.tc.gc.ca/eng/tdg/safety-menu.htm

Stay abreast of changes with our TDG Clear Language binder publication, and TDG amendment service.

OSHA Flammable
OSHA Tanker Labeling HazCom 2012 – “Everything Old is New Again”

Clarification provided by OSHA’s Inspection Procedure, Directive CPL 02-02-079 in July 2015, is filtering through the regulated community and causing some concern.

The directive essentially confirms that HazCom 2012 labeling applies to “… a tank truck, rail car or similar vehicle…” comprising the container for a hazardous chemical when it is not immediately unloaded at the destination.

Hazard Communication is Key

The intent is presumably to ensure that workers potentially exposed to hazardous chemicals will be able to identify the risks, particularly if they are not familiar with DOT markings – or if the substance is a hazardous chemical under OSHA, despite not being a hazardous material under DOT.

The wording of 29 CFR1910.1200(c) is light on definitions of “container” (“…storage tank or the like that contains a hazardous chemical…”); and “shipped container” in (f)(1) et al is not actually defined in the regulation itself.

However, “Shipped Container” is defined in part X.C.21 of the CPL directive, i.e. “… means any container leaving the workplace, whether through normal shipping routes or physically handed to another person.”

Consequently OSHA expects that rail or highway tankers as “shipped containers” will, in addition to 49 CFR – required safety marks, include the HazCom 2012 “… labeling information … either posted on the outside of the vehicle or attached to the accompanying shipping papers …”

Sending a copy separately from the vehicle is not allowed.

Custom Tank Labels »

Rollin’, Rollin’, Rollin’

As long as the tanker is moving or being unloaded without storage, then the CPL directive considers DOT labeling requirements sufficient.

However, if the wheels are chocked and the cab/engine is disconnected before offloading, the tanker is considered “stored” and must have at least the equivalent of stationary process container labeling under 29 CFR1900.1200(f)(7).

As with the various versions of the title “Rollin, Rollin, Rollin” recorded (since the 1959 Frankie Laine rendition of Timken’s original for the “Rawhide” TV series, resurrected by the “Blues Brothers” in the ’80s; and repurposed by Joel Plunkett & Limp Bizkit for different lyrics in this century), the interpretation of tankers as OSHA Hazcom containers is not new.

For example, in an interpretive letter from the 1985 Hazcom era, OSHA indicated:

” … In your letter you indicated that your greatest concern is that OSHA has recently taken the position that tank trucks and tank cars are containers. Tank cars and rail cars have always been considered to be included under the definition of a container. In the Summary and Explanation of the Standard it is stated that a container is “anything that holds hazardous chemicals except pipes and piping systems” (48 FR 228, p. 53335) … “

Inspection procedures »

Theoretically hopper cars or bulk trailers of solid materials fit the same scenarios.

The subject was also included in a previous ICC Blog »

The CPL directive (PDF) »

NOTE: For those readers interested in the Canadian WHMIS 2015 requirement, Section 5.5 of the HPR (Hazardous Products Regulations) essentially exempts suppliers from the need to provide supplier WHMIS labels for “bulk shipments”. Bulk shipments include “… without intermediate containment … or packaging … a … road vehicle, railway vehicle … hold of a ship …”. Employer responsibilities are covered by workplace labeling regulations under the authority of local jurisdictions.

Lithium
Back to the Future – Interim ICAO/IATA 2016 Lithium Battery Changes

In addition to changes documented in the IATA 2016 (57th Edition) DGR, and the anticipated 2017 changes outlined in Appendix H (“Impending Changes” to ICAO Technical Instructions), recent incidents with lithium batteries and lithium battery-powered small vehicles (e.g. “Solowheels”, hoverboards, mini-“Segway”, etc.) have caused regulators to re-examine changes and deadlines.

Specifically ICAO intends to require that, in 2016 (date to be confirmed, April 1 proposed):

  1. Lithium ion cells and batteries (UN3480, PI 965) must only be offered for transport when their “state of charge” (SoC) does not exceed 30 % of the rated capacity, as determined by the UN Manual of Tests & Criteria (Section I cells/batteries are only allowed to exceed 30% if the States of Origin & Operator approve in writing).
  2. Not more than 1 package prepared under Section II of PI 965 (UN3480) or PI 968 (UN3090) may be placed in an overpack
  3. Overpacks prepared as above must have both the lithium caution label and “overpack” mark visible.
  4. Packages prepared as above must be offered separately from other cargo and not be loaded into a unit load device (ULD) before being offered to the carrier.

These are interim measures while performance-based standards are developed for lithium batteries; and until changes to UN3481 andUN3091 (packed with/in equipment) take effect in 2017. Some or all of these interim measures may be retained in the future editions of the DGR.

As IATA DGR includes all ICAO requirements, there should be an IATA DGR amendment once the date has been finalized by the ICAO Council.

Download the amendment here »

Hover Boards etc. … “You’re Going to See Some Serious …”

Incidents involving fires with batteries powering these vehicles have led organizations such as the US CPSC and PHMSA to issue safety alerts related to this aspect of the hazards associated with the units.

Hover Board Safety Alert PDF »

Statement from The US CPSC Chairman Elliot F. Kaye on the Safety of Hover Boards »

In many instances, both for vehicles and other incidents, fires are attributed to failure to meet design/manufacturing criteria.

IATA and other regulatory bodies require that shippers verify that the batteries powering these articles are meet the requirements of the UN Manual of Tests & Criteria protocols before they can be legally shipped (subject to government-approved exceptions for prototypes).

Clarification has also been provided by IATA on the proper classification of these vehicles and the need to consider the difference between UN3171 (Battery Powered Vehicles), UN3481 (Lithium ion batteries packed with/in equipment) and UN3480.

While the latter entries provide some exemption based on the Wh (PI965-967) rating of the batteries, UN3171 does not. Vehicles (“…self-propelled apparatus designed to carry one or persons or goods”) shipped under UN3171 (PI952) are subject to full documentation requirements (Shipper’s Declaration) and, unless SP 87 applies, full Class 9 marking/labelling.

A vehicle, shipped with its battery installed, is UN3171 (PI952).

If, however, the battery is removed from the vehicle and shipped in the same outer package (i.e. “with”), the package becomes UN3481 (PI966) and the potential for exemptions applies based on the Wh rating of the battery.

If one or more batteries are shipped in a separate package then these are classed as UN3480 (PI965) and potential Wh-based exemptions may apply.

Lithium Battery Vehicles Cargo PDF »

(Note that wheelchair/mobility aids used by passengers are still covered by “Limitation” subsection 2.3.2.4.)

Keep watching for news on amendments as we march/segue (Hover/Segway?) into 2016.