P.C. 2011-1270 October 27, 2011

Whereas, pursuant to subsection 30(1) (see footnote a) of the Transportation of Dangerous Goods Act, 1992 (see footnote b), a copy of the proposed Regulations Amending the Transportation of Dangerous Goods Regulations, substantially in the annexed form, was published in the Canada Gazette, Part Ⅰ, on May 2, 2009 and a reasonable opportunity was afforded to interested persons to make representations to the Minister of Transport with respect to the proposed Regulations;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 27 (see footnote c) of the Transportation of Dangerous Goods Act, 1992 (see footnote d), hereby makes the annexed Regulations Amending the Transportation of Dangerous Goods Regulations.

REGULATIONS AMENDING THE TRANSPORTATION
OF DANGEROUS GOODS REGULATIONS

AMENDMENTS

1. Subsection 1.15(1) of the Transportation of Dangerous Goods Regulations (see footnote 1) is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

1. (d) the dangerous goods are in a quantity or concentration available to the general public and are transported
   1. (i) by a user or purchaser of the dangerous goods, or
   2. (ii) by a retailer to or from a user or purchaser of the dangerous goods.

2. The last paragraph of italicized text before the heading “ UN2814, Category A — Virus and Bacteria ” in Appendix 3 to Part 2 of the Regulations is replaced by the following:

Substances with an asterisk “*” against them in column 3 of the Category A list require an Emergency Response Assistance Plan in accordance with subsection 7.1(7) of Part 7, Emergency Response Assistance Plan.

3. The italicized list after the heading “ Definitions ” in Part 7 of the Regulations is amended by adding the following in alphabetical order:

class
ICAO Technical Instructions
IMDG Code
infectious substance
packing group
shipping document
small means of containment
special provision
UN number

4. Section 7.1 of the Regulations and any italicized text are replaced by the following:

7.1  Requirement for an Emergency Response Assistance Plan (ERAP)

Subsection (1) deals with a quantity of dangerous goods that have the same UN number and that are contained in a single minimum required means of containment (see paragraph 1.3(2)(j) of Part 1, Coming into Force, Repeal, Interpretation, General Provisions and Special Cases, for an explanation of a minimum required means of containment). If the quantity of dangerous goods in a single means of containment exceeds the ERAP limit, an ERAP is required regardless of the size of the means of containment.

(1)  A person who offers for transport or imports dangerous goods that have the same UN number and that are contained in a single means of containment must have an approved ERAP if the quantity of those dangerous goods in the single means of containment exceeds the ERAP limit referred to in subsection (8).

Subsection (2) deals with an accumulation of means of containment containing dangerous goods included in Class 3 with a subsidiary class of Class 6.1, in Class 4, in Class 5.2, Type B or Type C, or in Class 6.1 included in Packing Group I.

(2)  A person who offers for transport or imports, in a road vehicle or a railway vehicle, dangerous goods that have the same UN number, that are included in one of the following classes and that are contained in more than one means of containment must have an approved ERAP if the total quantity of those dangerous goods in all the means of containment exceeds the ERAP limit referred to in subsection (8):

1. (a) Class 3, Flammable Liquids, with a subsidiary class of Class 6.1, Toxic Substances;
2. (b) Class 4, Flammable Solids, Substances Liable to Spontaneous Combustion, Substances That on Contact with Water Emit Flammable Gases (Water-reactive substances);
3. (c) Class 5.2, Organic Peroxides, that are Type B or Type C; and
4. (d) Class 6.1, Toxic Substances, that are included in Packing Group Ⅰ.

Subsection (3) deals with an accumulation of large means of containment containing dangerous goods that require an ERAP.

(3)  A person who offers for transport or imports, in a road vehicle or a railway vehicle, dangerous goods that have the same UN number and that are contained in more than one large means of containment must have an approved ERAP if the total quantity of those dangerous goods in all the large means of containment exceeds the ERAP limit referred to in subsection (8).

Subsection (4) deals with dangerous goods included in Class 1, Explosives, that require an ERAP.

(4)   A person who offers for transport or imports, in a road vehicle or a railway vehicle, dangerous goods included in Class 1, Explosives, and contained in one or more means of containment must have an approved ERAP if the total quantity of explosives with an ERAP index in Col. 7 of Schedule 1 exceeds the ERAP limit referred to in subsection (8) for the explosives with the lowest index number. If the quantities of explosives are expressed in net explosives quantity and number of articles, one kilogram net explosives quantity must be counted as 100 articles and each 100 articles must be counted as one kilogram net explosives quantity.

Subsection (5) deals with an accumulation of interconnected means of containment with a capacity greater than 225 L that contain dangerous goods included in Class 2, Gases.

(5)   A person who offers for transport or imports dangerous goods included in Class 2, Gases, that have the same UN number, that are contained in more than one means of containment, each of which has a capacity greater than 225 L, that are a single unit as a result of being interconnected through a piping arrangement, and that are permanently mounted on a structural frame for transport must have an approved ERAP if the total quantity of those dangerous goods in the interconnected means of containment exceeds the ERAP limit referred to in subsection (8).

Subsection (6) deals with tank cars that contain dangerous goods included in Class 3, Flammable Liquids, and that have the UN number UN1202, UN1203 or UN1863.

(6)   A person who offers for transport or imports rail tank cars that contain dangerous goods having the UN number UN1202, UN1203 or UN1863 must have an approved ERAP if

1. (a) the rail tank cars are interconnected in such a way that the loading or unloading of more than one rail tank car can be done from the first or last of those rail tank cars; and
2. (b) 17 or more of the rail tank cars are each filled to 70 per cent or more of their capacity.

Subsection (7) deals with dangerous goods included in Class 6.2, Infectious Substances, that require an ERAP.

(7)  A person who offers for transport or imports any quantity of the following dangerous goods, included in Class 6.2, Infectious Substances, or any substance that exhibits characteristics similar to these dangerous goods, must have an approved ERAP:

1. (a) Crimean-Congo Hemorrhagic fever virus;
2. (b) Ebola virus;
3. (c) Foot and mouth virus cultures;
4. (d) Guanarito virus;
5. (e) Hendra virus;
6. (f) Herpes B virus (Cercopithecine Herpesvirus-1) cultures;
7. (g) Junin virus;
8. (h) Kyasanur Forest virus;
9. (i) Lassa virus;
10. (j) Machupo virus;
11. (k) Marburg virus;
12. (l) Nipah virus;
13. (m) Omsk hemorrhagic fever virus;
14. (n) Russian Spring-Summer encephalitis virus;
15. (o) Sabia virus; and
16. (p) Variola (smallpox) virus.

(8)  A quantity of dangerous goods exceeds the ERAP limit if the dangerous goods have an index number in Col. 7 of Schedule 1 and

1. (a) if a solid, have a mass that is greater than the index number when that number is expressed in kilograms;
2. (b) if a liquid, have a volume that is greater than the index number when that number is expressed in litres;
3. (c) if a gas, including a gas in a liquefied form, are contained in a means of containment that has a capacity greater than the index number when that number is expressed in litres; or
4. (d) if an explosive
   1. (i) not subject to special provision 86, have a net explosives quantity that is greater than the index number when that number is expressed in kilograms, or
   2. (ii) subject to special provision 86, are in a quantity that is greater than the number of articles listed for the explosive.

(9)  For the purposes of subsections (1) to (7), a person, other than a manufacturer or producer, who offers for transport or imports dangerous goods for which an approved ERAP is required is not required to apply for approval of an ERAP in accordance with section 7.2 if the person shows on a shipping document

1. (a) the ERAP reference number and the telephone number to call to activate the approved ERAP held by a manufacturer, producer or distributor of the dangerous goods, and
   1. (i) the approved ERAP applies to the dangerous goods, the mode of transport, the means of containment and the area in which the dangerous goods are to be transported,
   2. (ii) the person who holds the approved ERAP gives permission in writing for the approved ERAP to be used and for the reference number of that approved ERAP and the telephone number to call to activate the approved ERAP to be shown on the other person’s shipping document, and
   3. (iii) the person who holds the approved ERAP agrees to respond to an emergency on behalf of the other person; or

The written permission required under subparagraph (a)(ii) from the person who holds an approved ERAP to another person to use that ERAP is required only once. However, the written permission may be in a notation on a shipping document that indicates that the holder of the approved ERAP gives permission, for example, to a carrier to use the approved ERAP.

1. (b) the ERAP reference number and the telephone number to call to activate the approved ERAP held by any other person, if the dangerous goods originate outside Canada and
   1. (i) the dangerous goods are transported through Canada to a destination outside Canada, and
   2. (ii) the person who offers for transport or imports the dangerous goods complies with the conditions set out in subparagraphs (a)(i) to (iii).

A distributor is not referred to in the portion of subsection (9) before paragraph (a) because a manufacturer or producer must always have an approved ERAP if one is required. This is not the case for a distributor, who may hold an approved ERAP but may also use the approved ERAP of a manufacturer or producer.

(10) The person who holds an approved ERAP and gives permission to another person to use that ERAP in accordance with subsection (9) must

1. (a) when that permission is given, notify the Director General in writing of the name of the person who will use the approved ERAP and the ERAP reference number; and
2. (b) when that permission is rescinded, notify the Director General in writing.

(11) Whether or not another person’s ERAP number is shown on a shipping document in accordance with subsection (9), the person who is required to have an approved ERAP in accordance with subsection 7(1) of the Act remains responsible for emergency response assistance as required under the Act.

(12) Any substance that would require an ERAP if its classification were determined in accordance with Part 2, Classification, requires an approved ERAP if its classification from the ICAO Technical Instructions, the IMDG Code or the UN Recommendations is used as permitted under section 1.10 of Part 1, Coming Into Force, Repeal, Interpretation, General Provisions and Special Cases.

5. Col. 7 after the heading “LEGEND” in Schedule 1 to the Regulations and any italicized text are replaced by the following:

Col. 7 ERAP Index. This column gives the ERAP (emergency response assistance plan) quantity limit above which there must be an ERAP for the dangerous goods in accordance with section 7.1 of Part 7, Emergency Response Assistance Plan. The quantity limit is expressed in kilograms for solids, litres for liquids and, for gases, as the capacity in litres of the means of containment of the gases. For Class 1, Explosives, the quantity is expressed in kilograms of net explosives quantity or, for those explosives subject to special provision 86, the number of articles. For Class 3, Flammable Liquids, with a UN number of UN1202, UN1203 or UN1863, see subsection 7.1(6) of Part 7, Emergency Response Assistance Plan, which sets out the ERAP requirements for those dangerous goods. For Class 6.2, Infectious Substances, see subsection 7.1(7) of Part 7, Emergency Response Assistance Plan, which sets out the ERAP requirements for certain infectious substances.

The ERAP quantity limit applies to the row in this Schedule on which it appears so that, for example, UN1986 may require an ERAP for Packing Group Ⅰ but not for Packing Group Ⅱ or Ⅲ.

If no index number is shown, an ERAP is not required except for those dangerous goods subject to special provision 82 or 84 (see subsection 7.1(8) of Part 7, Emergency Response Assistance Plan).

In Col. 7 of this Schedule, “SP” means “special provision”.

6. The portion of the data for UN0083 of Schedule 1 to the Regulations in Col. 2 to Col. 10 is replaced by the following:

7. The portion of the data for UN1418 of Schedule 1 to the English version of the Regulations in Col. 2 to Col. 10 is replaced by the following:

8. The portion of the data for UN1978 of Schedule 1 to the Regulations in Col. 2 to Col. 10 is replaced by the following:

9. The italicized text after special provision 38 of Schedule 2 to the Regulations is replaced by the following:

UN1001, UN1045, UN1058, UN1081, UN1194, UN1204, UN1222, UN1259, UN1261, UN1308, UN1310, UN1320, UN1321, UN1322, UN1324, UN1336, UN1337, UN1344, UN1347, UN1348, UN1349, UN1354, UN1355, UN1356, UN1357, UN1360, UN1378, UN1380, UN1383, UN1389, UN1391, UN1392, UN1396, UN1404, UN1407, UN1409, UN1410, UN1411, UN1413, UN1414, UN1415, UN1418, UN1419, UN1421, UN1426, UN1427, UN1432, UN1433, UN1436, UN1491, UN1504, UN1510, UN1517, UN1556, UN1557, UN1569, UN1571, UN1575, UN1582, UN1589, UN1612, UN1614, UN1660, UN1693, UN1697 to UN1701, UN1714, UN1748, UN1749, UN1854, UN1855, UN1859, UN1865, UN1868, UN1870, UN1889, UN1911, UN1953, UN1955, UN1957, UN1959, UN1967, UN1975, UN1982, UN1994, UN2006, UN2008, UN2010, UN2011, UN2012, UN2013, UN2188, UN2189, UN2190, UN2192, UN2194 to UN2199, UN2202, UN2203, UN2204, UN2417, UN2418, UN2420, UN2421, UN2451, UN2463, UN2466, UN2471, UN2480, UN2545, UN2546, UN2547, UN2548, UN2555, UN2556, UN2557, UN2626, UN2627, UN2676, UN2741, UN2806, UN2813, UN2846, UN2852, UN2870, UN2881, UN2901, UN2907, UN2956, UN2988, UN3048, UN3064, UN3083, UN3094, UN3095, UN3096, UN3101 to UN3108, UN3124, UN3125, UN3129, UN3130, UN3131, UN3132, UN3134, UN3135, UN3148, UN3160, UN3162, UN3221 to UN3230, UN3248, UN3249, UN3303 to UN3310, UN3317, UN3355

10. The italicized text after special provision 39 of Schedule 2 to the Regulations is replaced by the following:

UN2800

11. Special provision 82 of Schedule 2 to the Regulations and any italicized text are replaced by the following:

82 These dangerous goods require an emergency response assistance plan in accordance with subsection 7.1(6) of Part 7, Emergency Response Assistance Plan.

UN1202, UN1203, UN1863

12. Special provision 84 of Schedule 2 to the Regulations and any italicized text are replaced by the following:

84 The infectious substances identified in subsection 7.1(7) of Part 7, Emergency Response Assistance Plan, require an emergency response assistance plan.

UN2814, UN2900

13. The portion of English Sequence Number 182 of Schedule 3 to the English version of the Regulations in Col. 4 is replaced by the following:

14. The portion of English Sequence Number 223 of Schedule 3 to the English version of the Regulations in Col. 4 is replaced by the following:

15. The portion of French Sequence Number 262 of Schedule 3 to the French version of the Regulations in Col. 2 is replaced by the following:

16. The portion of French Sequence Number 489 of Schedule 3 to the French version of the Regulations in Col. 3 is replaced by the following:

COMING INTO FORCE

17. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Transportation of Dangerous Goods Act, 1992 (TDG Act, 1992) and theTransportation of Dangerous Goods Regulations (TDG Regulations) are intended to promote public safety in the transportation of dangerous goods in Canada.

Recent amendments to the TDG Regulations extended an exemption beyond the general public to include all persons handling, offering for transport or transporting up to 150 kg of certain dangerous goods (e.g., flammable liquids) with the result that these exempted dangerous goods could be offered to a carrier without the carrier being aware of them. This could lead to a potential risk to public safety as well as an economic disadvantage for those who incur additional costs by fully complying with the TDGR.

Section 7.1 (Requirement for an Emergency Response Assistance Plan (ERAP)) was also changed in recent amendments and enforcement personnel, industry groups, the Transportation Safety Board of Canada and emergency responders have raised concerns about those changes regarding interpretation, implementation, and enforcement and, in particular, the accumulation of large quantities of gases in interconnected means of containment (usually referred to as a tube trailer). Each individual means of containment could have a capacity greater than 225 L. Consequently, a clear indication was required regarding the need for an ERAP if the capacity of each means of containment exceeds 225 L.

Description and rationale

150 kg exemption

The amendment to section 1.15 requires that the dangerous goods must be in a quantity or concentration available to the general public and that only the user or purchaser of the dangerous goods transport them or that a retailer transport the dangerous goods to or from the user or purchaser of the dangerous goods.

This amendment is not intended to limit the scope of the exemption or to prevent industry from taking advantage of the exemption. The amendment is intended to remove the possibility of a transferable exemption that could lead to situations where carriers, including air carriers, are unaware they are transporting dangerous goods. The dangerous goods do not have to be purchased at a retail outlet. A contractor may obtain the dangerous goods, for example, at a place that is not open to the general public but that sells the dangerous goods in a quantity or concentration the general public could purchase elsewhere.

ERAP requirements

Section 7.1 of the TDG Regulations deals with the requirements for an ERAP. The section has been re-organized and some new provisions have been added either to respond to stakeholder concerns or to improve the clarity of the regulatory text. The notable changes are outlined below:

• an approved ERAP is required for dangerous goods in an accumulation of large means of containment. Recent amendments introduced the complex concept of an accumulation of dangerous goods in means of containment where each means of containment has a capacity greater than 10 per cent of the ERAP limit. This amendment eliminates this complex concept because it is an administrative burden and is difficult to enforce, especially in pick-up and delivery scenarios where the total quantity of dangerous goods fluctuates below or above the ERAP limit;
• an approved ERAP is required for an accumulation of explosives that have an ERAP index number in column 7 of Schedule 1. The concept of basing the ERAP requirement on the explosives with the lowest index number in column 7 of Schedule 1 is added for clarification. These changes are based on the possibility that, in the event of an accident, the explosives, for which an ERAP is required, would all explode en masse despite having different UN numbers. This assures that shipments of explosives in quantities requiring an ERAP do, in fact, have one;
• an approved ERAP is required for the accumulation of interconnected means of containment, containing dangerous goods included in Class 2, Gases, when each means of containment has a capacity greater than 225 L. This is intended to capture cylinders and tubes that are interconnected (transported in what is usually referred to as a tube trailer). This change recognizes that a trailer with an accumulation of dangerous goods in interconnected cylinders and tubes poses a risk similar to a trailer with a single load of the same dangerous goods, when the quantity exceeds the ERAP limit, and would be treated in the same manner. This change addresses the acute danger to the public and the intervention efforts required to mitigate an accidental release of the dangerous goods transported in this manner;
• the Regulations pre-published in Part Ⅰ of the Canada Gazette lowered the number of rail tank cars carrying certain flammable liquids to a “string” of 17 or more that are 50 per cent or more full. As a result of comments, 50 per cent has been changed to 70 per cent. The intent of subsection 7.1(6) is to avoid combinations of strings or rail cars where the average quantity of flammable liquids would be less than 70 per cent and, therefore, an ERAP would not be required.
• subsection 7.1(8), is changed by deleting the reference to dangerous goods with the same UN number and the 100 L threshold for gases. This threshold for the accumulation of gases in means of containment that have a capacity less than, equal to or greater than 100 L creates confusion in interpretation, implementation and enforcement. The text returns to the wording before Amendment 6;
• the intent of subsection 7.1(9) is to state the circumstances under which a person who is required to have an approved ERAP, but does not have one, may show the number of another person’s approved ERAP on a shipping document. A reference to distributors is added in paragraph (a) to allow persons who offer for transport or import dangerous goods to use a distributor’s approved ERAP when the dangerous goods are being returned to the distributor. A distributor is not mentioned in the portion of subsection 7.1(9) before paragraph (a) because the manufacturer or producer must always have an approved ERAP when one is required. That is not the case for a distributor. A distributor may hold an approved ERAP but may also use the approved ERAP of a manufacturer or producer;
• the person who holds an approved ERAP and who allows another person to use that ERAP is required to advise the Director General, in writing, of the name of the person who will use the approved ERAP. This is considered necessary for safety purposes to determine, in the event of an incident, which ERAP should be activated.

There are also editorial changes to Schedules 1, 2 and 3 that align shipping names, classes, packing groups, and special provisions between the schedules, and in some cases aligns the English and French texts in the schedules.

The amendments are expected to enhance the functioning of the transportation of dangerous goods regulatory program. It is anticipated that the amendments will have a minimal but positive impact on the way consignors and carriers of dangerous goods do business.

Consultation

Consultation included the identification of issues and concerns, and a major effort to obtain a wide consensus, involving groups and organizations responsible for public safety. Clarity and presentation of the text, costs and benefits, alternatives, enforcement policies and public safety initiatives were raised and discussed. The proposed amendments were presented to the following:

(1) members of the Federal/Provincial/Territories TDG Task Force, spring 2008;

(2) members of the Transportation of Dangerous Goods General Policy Advisory Council, spring 2008;

(3) members of the Multi-Association Committee on Transportation of Dangerous Goods (MACTDG), summer 2008;

(4) the general public through the Transportation of Dangerous Goods Web site, spring and summer 2008; and

(5) the five TDG regional offices, spring and summer 2008;

Comments were received from provincial authorities, road, rail, marine and air transport, chemical industries, training facilities, and designated inspectors.

The proposed Amendment was pre-published in the Canada Gazette, Part Ⅰ, on May 2, 2009, followed by a 75-day comment period. Nineteen comments were received.

Stakeholders generally supported the amendment in Part Ⅰ of the Canada Gazette.

In the Spring 2010, changes to the text of the amendment, based on comments received from the pre-publication in Part Ⅰ of the Canada Gazette were provided to the Federal/Provincial/ Territories TDG Task Force, to the Transportation of Dangerous Goods General Policy Advisory Council and to the general public on the Transportation of Dangerous Goods Web site.

As a result of comments, editorial changes have been made to several subsections to assure that the Regulatory intent is clear.

As a result of comments on the proposed text of subsection 7.1(6) in Part Ⅰ of theCanada Gazette, 50 per cent has been changed to 70 per cent. The intent of this subsection is to avoid combinations of strings of rail tank cars where the average quantity of flammable liquids would be less than 70 per cent and, therefore, an ERAP would not be required.

Some commentors were concerned that allowing a person to use the approved ERAP of another person would compromise financial sustainability of an association when the holder of an approved ERAP belongs to an association and the person who has permission to use the approved ERAP might not be a member of that organization. In addition, some organizations that specialize in emergency response were concerned that they might not have a contract with the person who uses another person’s approved ERAP and might not be aware that the permission has been granted.

This concern is addressed in subsection (9) which includes a requirement for the person who holds an approved ERAP to give permission, in writing, for that ERAP to be used and to be shown on a shipping document and to undertake to respond to an emergency on behalf of that person. The response contractors and associations can further limit the circumstances where a client or member can allow the use of their ERAP through contractual agreements. The limitations imposed by the contractor or association would then also be addressed in the ERAP approval issued by Transport Canada. Any contractual agreements must be included in the ERAP application and will be verified by Transport Canada before an ERAP is approved.

In June 2010, there was a further consultation meeting with members of the Transportation of Dangerous Goods General Policy Advisory Council, regarding specific issues related to bridge traffic and the identification of an importer. Two stakeholders were concerned about the ERAP requirements for “bridge traffic”. Bridge traffic is transporting dangerous goods from a place outside Canada, through Canada to a place outside Canada. The Act sets out when an ERAP is required for dangerous goods identified in the Regulations as requiring an ERAP, that is, for importing, or offering for transport, or, where no other person is required to have an ERAP, for handling or transporting the dangerous goods. The only circumstance where there is no person in Canada who is offering for transport or importing the dangerous goods is bridge traffic. Consequently, the carrier is responsible for having an approved ERAP when an ERAP is required. However, subsection 7.1(9) of the amendment allows the carrier to use another person’s ERAP. This Amendment does not change the ERAP requirements for bridge traffic that have been in effect for many years.

A new subsection (10) was added after pre-publication in Part Ⅰ of the Canada Gazettewhich requires the person who holds an approved ERAP and who allows another person to use that ERAP to advise the Director General, in writing, of the name of the person who will use the approved ERAP. The addition of this subsection is considered necessary for safety purposes to determine, in the event of an incident, which ERAP should be activated.

The editorial changes to Schedules 1, 2 and 3 were added after pre-publication in Part Ⅰ of the Canada Gazette. These changes respond to numerous requests from stakeholders received before pre-publication of Amendment 8. These editorial changes align shipping names, classes, packing groups, special provisions between the schedules and in some cases aligns the English and French texts.

Implementation, enforcement and service standards

Compliance with the TDG Act, 1992, and the TDG Regulations is accomplished through the existing inspection network in Canada. The network includes both federal and provincial inspection forces that inspect all modes of transport and all consignors of dangerous goods. These inspectors assure that the various safety standards, rules and requirements of the TDG Act, 1992 and the TDG Regulations are complied with.

The amendment has minimal impact on the TDG Directorate’s Compliance Strategy, which is based on the premise that dangerous goods are correctly prepared and safely offered for transport. Enforcement focuses on inspection sites that have the greatest impact on levels of compliance. As a result, scheduled inspections under the TDG Program remain focused mainly on those locations where dangerous goods first enter transport and on dangerous goods that present a high risk to public safety if they are released in an uncontrolled manner.

Source: http://gazette.gc.ca/rp-pr/p2/2011/2011-11-09/html/sor-dors239-eng.html

Whereas, pursuant to subsection 30(1) (see footnote a) of the Transportation of Dangerous Goods Act, 1992 (see footnote b), a copy of the proposed Regulations Amending the Transportation of Dangerous Goods Regulations (Amendment 10), in the annexed form, was published in the Canada Gazette, Part Ⅰ, on February 12, 2011 and a reasonable opportunity was afforded to interested persons to make representations to the Minister of Transport with respect to the proposed Regulations;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to sections 27 (see footnote c) and 27.1 (see footnote d) of the Transportation of Dangerous Goods Act, 1992 (see footnote e), hereby makes the annexed Regulations Amending the Transportation of Dangerous Goods Regulations (Amendment 10).

REGULATIONS AMENDING THE TRANSPORTATION
OF DANGEROUS GOODS REGULATIONS (AMENDMENT 10)

AMENDMENTS

1. The Table of Contents of Part 7 of the Transportation of Dangerous Goods Regulations (see footnote 1) is amended by adding the following after the entry for section 7.9:

Compensation for Authorized Implementation of an Approved Emergency Response Assistance Plan (ERAP)7.10

Compensation Limits………………………………………………………….7.11

Claims for Compensation……………………………………………………7.12

Emergency Response Assistance Plan for Emergency Response Contractors7.13

2. Part 7 of the Regulations is amended by adding the following after section 7.9:

7.10 Compensation for Authorized Implementation of an Approved Emergency Response Assistance Plan (ERAP)

 In accordance with section 7.2 of the Act, section 7.10 sets out compensation for a person with an approved emergency response assistance plan (ERAP) and who is authorized by the Minister to implement it to respond to a security (terrorist) incident.

 If a person with an approved ERAP is contacted by the Minister and agrees, the Minister could authorize the person to respond to a security (terrorist) incident on behalf of the Government of Canada. The Minister would select an ERAP based on the appropriateness of the plan and the ability of the person to respond in a timely manner. Should the person agree to respond, the Government would pay the expenses, specified in section 7.10, that are associated with the response action, including those related to death, disability or injury. The person would have personal liability protection under section 20 of the Act.

 An ERAP response to a security (terrorist) incident involving a release of dangerous goods would occur once it has been determined that all terrorist-related hazards other than the dangerous goods have been eliminated.

 Under the Act, industry is responsible for responding to safety or security incidents involving dangerous goods that are offered for transport, imported, handled or transported by a known person who has an approved ERAP for those dangerous goods. This existing response program and associated activities do not change because of these Regulations, which are intended to provide emergency response in the event that there is a security (terrorist) incident involving a release of dangerous goods by unknown persons.

(1) If a person agrees to implement an approved ERAP in accordance with paragraph 7.1(b) of the Act, the following expenses are authorized for the purposes of compensation under section 7.2 of the Act:

1. (a) expenses related to the death, disability or injury of the person or to the death, disability or injury of any of the person’s employees or contractors if
   1. (i) the person, the employee or the contractor is killed, disabled or injured during the implementation of the approved ERAP, and
   2. (ii) the death, disability or injury is the result of an act or omission that was committed by the person in good faith and without negligence;
2. (b) the cost of the person’s employees or contractors who are reasonably required to implement the approved ERAP;
3. (c) the cost of using the person’s tools and other equipment, such as vehicles, pumps, hoses and generators, that are reasonably required to implement the approved ERAP;
4. (d) travel expenses, such as those incurred for meals, accommodation, fuel, oil and flights, for persons who are reasonably required to implement the approved ERAP;
5. (e) rental fees for heavy equipment, such as cranes, bulldozers, pumps, compressors and generators, that is reasonably required to implement the approved ERAP;
6. (f) other overhead costs that can be reasonably attributed to the implementation of the approved ERAP;
7. (g) the cost of repairing tools and other equipment that are damaged during the implementation of the approved ERAP;
8. (h) the cost of replacing
   1. (i) single-use equipment and supplies, such as packaging, personal protective equipment, personal protective clothing, chemicals and other consumables, that are reasonably required to implement the approved ERAP,
   2. (ii) tools and other equipment that are lost during the implementation of the approved ERAP, and
   3. (iii) tools and other equipment that are damaged beyond repair during the implementation of the approved ERAP;
9. (i) the cost of repairing or replacing personal property or movables or real property or immovables that have to be damaged to implement the approved ERAP;
10. (j) the cost of defending any legal action for which there is no personal liability under paragraph 20(c) of the Act; and
11. (k) the cost of cleaning up after an incident, including handling and disposal costs for dangerous goods and contaminated materials.

(2) The following expenses are not authorized for the purposes of compensation under section 7.2 of the Act:

1. (a) the cost of purchasing new equipment to implement the approved ERAP; and
2. (b) the cost of lost business or production during the implementation of the approved ERAP.

7.11 Compensation Limits

(1) Compensation under paragraph 7.10(1)(a) is limited to the compensation that would be paid in relation to the dead, disabled or injured person if the person were insured under

1. (a) the Public Service Management Insurance Plan;
2. (b) the Public Service Health Care Plan, with hospital coverage at level III; and
3. (c) the Public Service Dental Care Plan.

(2) Compensation under paragraph 7.10(1)(h) in relation to the replacement of the items listed in subparagraphs (i), (ii) and (iii) is limited to the cost of an item of equivalent capability and quality.

(3) Compensation under paragraph 7.10(1)(i) in relation to damaged property is limited to the fair market value of the property immediately before it is damaged by the person who implements the approved ERAP.

7.12 Claims for Compensation

Claims for compensation must be submitted with supporting documentation to the Director General no later than three months after completion of the emergency response work.

 This section is intended to accommodate more than one claim because the emergency response work may include mitigation of the danger at multiple sites or may include multiple sequential mitigation actions that take time.

7.13 Emergency Response Assistance Plan for Emergency Response Contractors

A person who is not a manufacturer, producer or distributor of dangerous goods that require an ERAP, but who specializes in emergency response, may apply to have an ERAP approved under section 7.2 of this Part for the purpose of responding, in accordance with paragraph 7.1(b) of the Act, to an actual or anticipated release of dangerous goods.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Paragraph 7.1(b) of the Transportation of Dangerous Goods Act, 1992 (TDG Act) allows the Minister of Transport to authorize a person who has an approved emergency response assistance plan (ERAP) to respond to an actual or anticipated release of dangerous goods if the identity of the person who is required to have an approved ERAP is unknown (e.g. a national security or terrorist event). Section 7.2 of the TDG Act states that the Minister shall compensate any person who is authorized to implement an emergency response assistance plan (ERAP) in accordance with the Regulations.

The Transportation of Dangerous Goods Regulations (TDG Regulations) did not before the Amendment specify such compensation and industry may not agree to respond to a security (terrorist) incident without a clear understanding of the compensation that is available for the costs incurred during a response.

The objective of the Amendment is to provide the Government of Canada with a tool to respond efficiently and effectively to a security (terrorist) incident, where the identity of the person responsible for the actual or anticipated (orphan) release of the dangerous goods is unknown. The objective will be achieved by utilizing the existing ERAP network and infrastructure. The Amendment will ensure that the person who agrees to respond to an authorization from the Minister to implement the approved ERAP is aware of the compensation available.

Description

The Regulations Amending the Transportation of Dangerous Goods Regulations(Amendment) update Part 7, Emergency Response Assistance Plan, of the TDG Regulations by adding four new sections (sections 7.10, 7.11, 7.12 and 7.13).

The Amendment sets out the compensation for a person who has an approved ERAP and who is authorized by the Minister to respond to a security (terrorist) incident where the identity of the person responsible for the actual or anticipated (orphan) release of the dangerous goods is unknown. The Amendment lists all the costs that could be incurred in the implementation of the approved ERAP and that are eligible for compensation. In particular, this covers

• expenses related to the death, disability or injury of the person or to the death, disability or injury of any of the person’s employees or contractors if
• the person, the employee or the contractor is killed, disabled or injured during the implementation of the approved ERAP, and
• the death, disability or injury is the result of an act or omission that was committed by the person in good faith and without negligence;
• the cost of the person’s employees or contractors;
• the cost of using the person’s tools and other equipment (e.g. vehicles, pumps, hoses and generators);
• travel expenses (e.g. meals, accommodation, fuel, oil and flights);
• rental fees for heavy equipment, such as cranes, bulldozers, pumps, compressors and generators;
• other overhead costs that can be reasonably attributed to the response;
• the cost of repairing tools and other equipment that are damaged during the response;
• the cost of replacing single-use equipment and supplies (e.g. packaging, personal protective equipment, personal protective clothing, chemicals and other consumables), tools and other equipment that are lost or damaged beyond repair during the response;
• the cost of repairing or replacing personal property or movables or real property or immovables that have been damaged during the response;
• the cost of defending any legal action for which there is no personal liability under paragraph 20(c) of the Act; and
• the cost of cleaning up after an incident, including handling and disposal costs for dangerous goods and contaminated materials.

The final amount of compensation for the costs listed in subsection 7.10(1) will depend on the complexity and length of the response.

The Amendment does not authorize

• the cost of purchasing new equipment to implement the approved ERAP; or
• the cost of lost business or production during the implementation of the approved ERAP.

The compensation limits related to the death, disability or injury of the person who implements the approved ERAP or to the death, disability or injury of any of the person’s employees or contractors is to be paid as if the person were insured under the Public Service Management Insurance Plan, the Public Service Health Care Plan with hospital coverage at Level III and the Public Service Dental Care Plan.

Claims for compensation must be submitted with supporting documentation to the Director General of the Transport Dangerous Goods Directorate, Department of Transport. Claims will be paid out of the Consolidated Revenue Fund as prescribed in subsection 7.2(2) of the TDG Act.

Finally, a person who does not require an ERAP but who specializes in emergency response will be able to apply to have an ERAP approved for the purpose of responding to a security (terrorist) incident where the identity of the person responsible for the actual or anticipated release of the dangerous goods is unknown.

Rationale

The creation of an ERAP response program somewhere within government was not considered a viable alternative. This option would be costly to establish, maintain and administer.

Established in the TDG Regulations in 1985, ERAPs are required for certain dangerous goods that necessitate specialized expertise and response equipment in the event of an incident. ERAPs are intended to quickly assist emergency responders by providing them with on-site expertise and equipment, as required, following an incident.

In the event of a security (terrorist) incident resulting in an actual or anticipated release of dangerous goods, the Minister of Transport will be able to call upon a person who holds an approved ERAP and who has the appropriate expertise and capability to handle, on behalf of the Government, the actual or anticipated release. This provides the Government with an existing efficient and effective tool to respond to a security (terrorist) incident where the identity of the person responsible for the actual or anticipated (orphan) release of the dangerous goods is unknown.

The response by the approved ERAP holder will only occur once it has been determined that the incident site is free of terrorist related hazards other than the dangerous goods. The choice of ERAP and the authorization enabling the ERAP holder to respond will be based on the appropriateness of the ERAP and the ability of the ERAP holder to respond in a timely manner. If the person who holds the approved ERAP agrees to respond, the Amendment sets out the compensation available to the ERAP holder following authorization from the Minister to respond.

The Amendment allows the Government to tap into an existing program and not have to establish a new ERAP program, maintain that program and hire and train people to respond to security (terrorist) incidents. It also ensures that the person who agrees to respond to an authorization from the Minister to implement the approved ERAP is aware of the compensation available.

Consultation

Extensive consultations have taken place across Canada since 2002, concerning proposed amendments to the TDG Act, the development of an interim order and the development of this Amendment.

In 2002, the Transport Dangerous Goods Directorate (TDG Directorate) established a Chemical, Biological, Radiological, Nuclear and Explosives (CBRNE) Response Program as a part of the federal government’s initiative on counter-terrorism. The mandate of the TDG Directorate’s CBRNE Response Program is to provide response services following a CBRNE security (terrorist) incident. Such a response would occur once all terrorist-related hazards have been eliminated other than the dangerous goods.

The CBRNE Response Program is based on the existing emergency response network and infrastructure established under the ERAP requirements in the TDG Act and Regulations. The TDG Directorate consulted with industry to seek their agreement to participate in the program.

Industry agreed and expressed a strong interest in participating in the CBRNE program as long as the Government was able to compensate them for their services, provide insurance coverage during the requested response and provide personal liability protection. Following these consultations, Transport Canada determined that the TDG Act needed to be revised to include these authorities and to enable the CBRNE Response Program to use the existing safety-related ERAP Program.

In 2004 and 2005, the Department continued consultations with the public, industry, the provinces and territories on amendments to the TDG Act that would include industry in the response to a security (terrorist) CBRNE incident.

In March 2009, in Calgary, at a seminar on CBRNE response, TDG consulted again with industry, response contractors and first responders. At that seminar, discussion included changes to the TDG Act that would enable the Minister to authorize a person who holds an approved ERAP to respond to a security (terrorist) incident, including the ability to compensate (and what those compensations would include) and the provision of personal liability protection in section 20 of an amended TDG Act.

In September 2009, in preparation for the Olympics and the G8/G20 Summits, an interim order regarding actual or anticipated releases of dangerous goods as a result of a security (terrorist) incident was drafted and offered for consultation. The draft interim order was posted on the Transport Canada Web site, was consulted extensively at meetings of the Federal/Provincial/ Territorial Task Force and the General Policy Advisory Council (Minister’s Advisory Council) and was circulated for consultation to all emergency response contractors who expressed an interest in participating in the program. The draft interim order was not signed by the Minister as there were no dangerous goods security events to cause its activation and use.

The Amendment reflects the content of the draft interim order and all the consultations with industry, emergency response contractors and first responders. Consultation included the identification of issues and concerns, and efforts to obtain a consensus, involving various groups and organizations, including emergency response contractors and other stakeholders. Costs and benefits of the compensation, alternatives, and public safety and security initiatives were discussed.

Consultation on the Transport Canada Web site and with members of the Federal-Provincial/Territorial Task Force and the General Policy Advisory Council (Minister’s Advisory Council) provided input for framing the regulatory text.

The proposed Amendment was published in Part Ⅰ of the Canada Gazette on February 12, 2011. Ten comments were received. The comments supported the proposed amendment. One commenter suggested a technical change, which was resolved in discussion with the commenter, and no change to the Amendment was required.

Implementation, enforcement and service standards

Enforcement of the Amendment will be accomplished through the existing inspection network. Emergency Response Assistance Plans are reviewed by the TDG Directorate’s Remedial Measures Specialists.

Source: http://www.gazette.gc.ca/rp-pr/p2/2011/2011-10-12/html/sor-dors210-eng.html