When we check in before a flight, we declare our awareness of the rules on what is allowed and what is not allowed to be taken on board. Intuitively, we know what might be too dangerous to carry and we would rather not try to bring gas cylinders or corrosive substances onto the plane. However, this does not mean that aircraft (but also drones) do not carry hazardous materials. Moreover, the fact that it is permissible to carry often – again – intuitively unacceptable substances such as acids or radioactive isotopes on board may come as a surprise, but it is reassuring to know that the whole process – although subject to numerous regulations, requirements and approvals – is carried out in a safe manner. It is worth being aware of the transport of hazardous materials by air, especially if you are a businessman, scientist or official working with such substances on a daily basis. You never know when you will need to send them thousands of kilometres.
The starting point for this text should be the indication that the most important legal act regulating the transport of title items in Polish law is the Act of 5 August 2022 on the transport of hazardous materials by air (Journal of Laws, item 1715). Its most important excerpts will constitute the subject of this article, however it should be noted that before undertaking transport of this type of goods, the content of the mentioned regulation should be familiarised. Also of relevance to the issue are Annexes 6 and 18 to the so-called Chicago Convention and Commission Regulation (EU) No. 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, which in the provision CAT.GEN.MPA.200 establishes the general standard for the carriage of the materials in question within the European Union. Also important are the so-called Technical Instructions for the Safe Transport of Hazardous Materials by Air (ICAO Doc. 9284-AN/905), which this text will discuss further below.
The Transport of Hazardous Materials by Air Act defines hazardous materials as articles or substances whose properties have the potential to pose a risk to health, safety, property or the environment and are indicated in, or classified in accordance with, Table 3-1 of ICAO Doc. 9284. It is worth pointing out that the length of this table is dozens of typewritten pages, justifying the limitation to the indication of examples of such materials as gunpowder, most batteries, fuels, explosives, paints, elements such as magnesium, sodium, sulphur, gas tanks, asbestos… but also perfumes manufactured on a flammable basis. It should be noted here that certain substances are considered as hazardous materials requiring special procedures when their quantity exceeds a certain physical size. For perfume – which is therefore in principle a hazardous material – the threshold is 5 litres for transport on a passenger aircraft and 60 litres for a cargo machine.
The Act also distinguishes high-risk hazardous materials, i.e. a specific type of material that can be used to commit an act of unlawful interference with civil aviation that may lead to serious consequences. These are referred to in Part 1, Chapter 5 of ICAO Doc. 9284.
In the act in question, the legislator has distinguished among hazardous materials those that are radioactive in nature. They have radioactive properties, i.e. they emit radiation and pose a serious risk to human health and environmental safety, which requires appropriate control and transport measures. These are substances containing radioactive isotopes, which in turn are discussed in Part 2, Chapter ICAO Doc. 9284.
It is worth adding that a similar definition of hazardous materials is provided by Regulation 965/2012, already referred to.
Regulations, both national, EU and international, use the terms ‘competent authority’, ‘national authority’, ‘relevant authority in administrative matters’, etc. It should be understood as:
- Minister of Defence when flying a civil aircraft to an aerodrome of military use,
- the President of the State Atomic Energy Agency – for radioactive materials,
- President of the Civil Aviation Authority in other cases.
Hazardous materials may only be transported by an operator (e.g. an airline) that has been issued with the appropriate authorisations referred to in Annex 6 to the Chicago Convention. However, the operator is exempted from meeting this requirement unless the hazardous materials are subject to the provisions of ICAO Doc. 9284, or if the provisions of Part 8 of the aforementioned document explicitly allow their carriage by passengers or crew members of the aircraft.
An operator who has been authorised to transport hazardous materials by air must include all relevant information relating to such transport both in his approved operations manual and in other instructions he issues, if applicable. These documents should be available to crews and other workers as well as subcontractors. Speaking of which, if the operator subcontracts this type of transport, then the subcontractor also has safety responsibilities and formal requirements for obtaining the relevant authorisations. Only in this way can the safe transport of hazardous materials by air be reliably ensured, procedures be more likely to be followed and risks to people, property and animals be minimised.
Every aircraft crew should be aware of which and in what quantities hazardous materials are on board. This is crucial information in all emergency situations involving an increased risk of damage or crashing of the aircraft and the uncontrolled escape of substances into the atmosphere or soil or water. It is worth mentioning that in such situations, in addition to the remaining fuel on board and the number of living (sic!) people on board, information about the materials discussed in the article is one of the key information to be provided to the air traffic services even before landing. It allows the rescue operation to be planned and the appropriate personnel to be prepared for action.
An air operator that has been authorised to transport hazardous materials by air must comply with the requirements for periodic training of personnel involved in the transport and ensure that it only allows authorised persons to work.
There are cases of substances that can only be carried in the passenger cabin, i.e. in hand luggage. If the carriage of such a hazardous material is declared, provision should be made to take it on board. However, if the operator has aircraft that do not provide space in the passenger cabin for hand luggage, he should develop a special procedure to ensure that such materials are not carried in the hold. Such a procedure should consist of key elements provided by law, including methods and means of communicating to passengers that hazardous materials must be declared. The operator should also identify such items and provide methods for their handling. The procedure in question must also set out rules for cooperation with airport staff when loading and unloading aircraft.
The regulations also provide for a number of rights and obligations at the shipper of the hazardous material to be transported by air. The consignor – which can only be an entity on the list maintained by the President of the Civil Aviation Authority – should, inter alia, comply with the rules and requirements relating to the items they are consigning and ensure that the materials are not – under the circumstances – prohibited. Knowledge of Part 1, Chapter 2 of ICAO Doc. 9284, which provides relevant guidance, will be key here. It is also important to obtain carriage approval and to classify the materials as provided for in Part 2. Preparing the goods for transport, i.e. in particular packing the cargo appropriately, will also be an important step. In this respect, the shipper should adhere strictly to the guidelines contained in Part 1, Chapter 2 and in Parts 3 and 4 of ICAO Doc. 9284 for individual packages and in Part 5, Chapter 1 when it comes to materials placed in bulk packaging. It is also important to include the relevant markings in English and, where necessary or where there is a separate requirement in Parts 3 to 6 of the document, in other languages required by the country of origin. It is also important to draw up, complete and sign the relevant transport document for hazardous materials in English and in other languages if, similar to the above regulation, required by the State of origin.
As mentioned above – not everyone can be a shipper. In order to obtain this entitlement, in the case of the territory of the Republic of Poland, it is necessary to successfully complete a training course, conducted in accordance with the principles set out in Article 21(2) of the Act on the Transport of Hazardous Materials by Air, and to meet the training requirements specified for the consignor, as set out in ICAO Doc. 9284.
The legislator also provides for the institution of a designated postal operator, which is responsible for transporting postal items containing the described materials on the territory of the Republic of Poland. It should observe detailed procedures and requirements prescribed by law, which include, inter alia, ways of ensuring monitoring and control of materials placed in the parcels. The postal operator is not only obliged to have and implement appropriate procedures, but should also train staff, report accidents, incidents and events, and determine ways of providing customers with information on restrictions and prohibitions related to the transport of hazardous materials. The operator should be prepared to deal with the various circumstances that may arise in relation to certain types of hazardous materials, allowing for the legally required labelling of shipments. In addition, information on the transport of hazardous materials should be displayed by the operator in a prominent place at the postal reception points. Compliance with all these exacting standards is ascertained by the President of the Civil Aviation Authority.
Those versed in the world of unmanned aircraft (UAV) will not be surprised that drones also happen to transport hazardous materials. Here, however, they are defined differently, i.e. Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on rules and procedures for the operation of unmanned aerial vehicles indicates that hazardous materials are articles or substances which, in the event of an incident or accident, may pose a risk to health, safety, property or the environment, which the UAV carries as payload. The Regulation sets out an illustrative catalogue of such materials indicating in particular:
- explosives at risk of indiscriminate explosion, detonation or dispersion, small explosion, major fire, as well as blasting agents and extremely insensitive explosives,
- gases, including those that are flammable, non-flammable, poisonous, oxygen, a gas that poses a risk when inhaled,
- flammable liquids, flammable substances, diesel, petrol,
- Flammable solids, spontaneously combustible solids, hazardous when wet,
- oxidising agents and organic peroxides,
- toxic and infectious substances, i.e. poisons and substances of biological concern,
- radioactive substances,
- corrosive substances.
The transport of such materials is only allowed in the certified category, as it falls into the category of the most serious risks that can arise from UAV operations. It is worth noting, however, that the transport or airborne use of such materials by UAVs may be one of the most relevant drone applications in the future, as not only can such a means of transport be one of the fastest within, for example, factory complexes or critical infrastructure networks, it can also minimise the risk to personnel involved in a possible hazardous incident. These regulations are therefore needed and should be expected to develop and expand further as this branch of the market grows.
In summary, the transport of hazardous materials by air is strictly regulated, demanding and reserved for those who meet exacting standards, which also makes it possible and relatively safe. Without these regulations, economic, scientific or industrial activities, but also many issues of daily life would be significantly more difficult. It is possible that the level of safety will be further enhanced, especially in light of the fact that UAVs are increasingly relieving crews of the risk of being on board with such substances.
Artur Banach, attorney at law
