Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan): SOR/2019-101

Canada Gazette, Part II, Volume 153, Number 9

Registration
SOR/2019-101 April 15, 2019

TRANSPORTATION OF DANGEROUS GOODS ACT, 1992

Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan)

P.C. 2019-326 April 12, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 27 footnote a of the Transportation of Dangerous Goods Act, 1992 footnote b, makes the annexed Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan).

Amendments

1 (1) The definition emergency response assistance plan or ERAP or ERP in section 1.4 of the Transportation of Dangerous Goods Regulations footnote 1 is repealed.

(2) Section 1.4 of the Regulations is amended by adding the following in alphabetical order:

ERAP means an emergency response assistance plan. (PIU)

residue means the dangerous goods remaining in a means of containment after its contents have been emptied to the maximum extent feasible and before the means of containment is either refilled or cleaned of dangerous goods and purged to remove any vapours. (résidu)

2 Subsection 1.34(2) of the Regulations is replaced by the following:

(2) When substances that have a flash point greater than 60°C but less than or equal to 93°C are transported in accordance with subsection (1), sections 5.14.1 to 5.15.6 and 5.15.11 of Part 5 (Means of Containment) do not apply in respect of a railway vehicle that transports the substances, and an ERAP is not required for the substances under paragraph 7.2(1)(f) of Part 7 (Emergency Response Assistance Plan).

3 Paragraph 1.44(a) of the Regulations is repealed.

4 Subsection 3.5(4) of the Regulations and the italicized text after it are replaced by the following:

(4) Despite paragraph (1)(d), if the means of containment contains a residue, the words “Residue — Last Contained” or “Résidu — dernier contenu” may be added before or after the description of the dangerous goods. These words must not, however, be used for dangerous goods included in Class 2, Gases, that are in a small means of containment or for dangerous goods included in Class 7, Radioactive Materials.

5 (1) Subsection 3.6(1) of the Regulations is replaced by the following:

(1) In addition to the information required by subsection 3.5(1), the shipping document for dangerous goods for which an approved ERAP is required under subsection 7(1) of the Act must include

(2) The italicized text after subsection 3.6(2) of the Regulations is struck out.

6 Subsection 3.6.1(3) of the Regulations is replaced by the following:

(3) This section does not apply in respect of a large means of containment that contains a residue.

7 The italicized text after paragraph 4.17(1)(b) of the Regulations is struck out.

8 Part 7 of the Regulations is replaced by the following:

PART 7

Emergency Response Assistance Plan

TABLE OF CONTENTS

Definitions
Section

Emergency Response Assistance Plan

Definitions

Definitions for the following terms, used in this Part, are provided in Part 1 (Coming into Force, Repeal, Interpretation, General Provisions and Special Cases)

7.1 Application

This Part sets out

7.2 Requirement to Have an Approved ERAP

(1) For the purposes of subsection 7(1) of the Act, an approved ERAP is required for

(2) Any substance that would require an ERAP if its classification were determined in accordance with Part 2 (Classification) requires an approved ERAP if its appropriate classification in the ICAO Technical Instructions, the IMDG Code or the UN Recommendations is to be used under subsection 2.2(4).

7.3 Application for Approval of an ERAP

(1) A person must apply to the Minister in writing for the approval of an ERAP.

(2) The application for approval must be signed by the applicant and must include a copy of the ERAP and the following information:

7.4 Application for Approval of an ERAP – Emergency Response Contractors

A person who is not required to have an approved ERAP under subsection 7(1) of the Act, but who is able to take measures to respond to a release or anticipated release of dangerous goods for the purposes of paragraph 7.1(b) of the Act, may apply to the Minister in writing for the approval of an ERAP. The application must include a copy of the ERAP and the information referred to in paragraphs 7.3(2)(a), (b), (d), (g) and (i) to (l).

7.5 Application for Approval of Changes to Approved ERAP

(1) A person with an approved ERAP must, as soon as possible, apply to the Minister in writing for an approval of changes if any of the information referred to in paragraphs 7.3(2)(a) to (l) has changed since its approval.

(2) The application referred to in subsection (1) must be signed by the applicant and include

7.6 Request for Review of Decision

(1) A person may request a review of the decision to refuse an application for approval of an ERAP or to revoke an ERAP approval within 30 days after being notified of the decision.

(2) The request must be made to the Minister in writing and must include the reasons why the decision should be revised.

7.7 Authorization to Use an Approved ERAP

(1) A person who is required to have an ERAP under subsection 7(1) of the Act may use, as an authorized user, the ERAP of another person who received approval for the ERAP if

(2) The authorized user must be able to produce a copy of the authorization referred to in paragraph (1)(d)

7.8 Implementation of an Approved ERAP

(1) A person with an approved ERAP must implement it to tier 1 or tier 2 in response to a release or anticipated release of dangerous goods.

(2) A person who implements an approved ERAP to tier 1 must

(3) A person who implements an approved ERAP to tier 2 must

(4) A person must not prevent another person who has an approved ERAP from taking emergency measures in response to a release or anticipated release.

7.9 Compensation for the Authorized Implementation of an Approved ERAP

(1) If a person implements 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:

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

7.10 Compensation Limits

(1) Compensation under paragraph 7.9(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

(2) Compensation under paragraph 7.9(1)(h) in relation to the replacement of the items listed in subparagraphs 7.9(1)(h)(i), (ii) and (iii) is limited to the cost of an item of equivalent capability and quality.

(3) Compensation under paragraph 7.9(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.

7.11 Claims for Compensation

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

9 The reference “III” in the column entitled “Packing Group or Category” of the table to section 8.2 of the Regulations opposite the reference “3, 4, 5, 6.1 or 8” in the column entitled “Class” is replaced by “III, or without packing group”.

10 Paragraph 8.7(q) of the Regulations is replaced by the following:

11 The Regulations are amended by adding the following after section 8.19:

ERAP Reports

8.20 ERAP Incident Report

A person who is required under subsection 18(1) of the Act to report a release or anticipated release of dangerous goods in respect of which an approved ERAP is required under subsection 7(1) of the Act must, as soon as possible after the release or anticipated release, make an ERAP incident report by telephone to the person at the ERAP telephone number required to be included on the shipping document under paragraph 3.6(1)(b), if the dangerous goods are, or could be, in excess of the quantity set out in the following table:

Table
Class Quantity
1, 2, 3, 4, 5, 6 or 8 Any quantity
7

A level of ionizing radiation greater than the level established in section 39 of the "Packaging and Transport of Nuclear Substances Regulations, 2015"

8.21 Information to be Included in an ERAP Incident Report

An ERAP incident report referred to in section 8.20 must include the following information:

8.22 ERAP Implementation Report

Each time a person implements an approved ERAP to tier 1 or tier 2, the person must, as soon as possible, make an ERAP implementation report to CANUTEC, at 1-888-CANUTEC (1-888‑226‑8832) or 613‑996‑6666.

8.23 Information to Be Included in an ERAP Implementation Report

An ERAP implementation report referred to in section 8.22 must include the following information:

12 Subparagraph 9.1(1)(a)(iv) of the Regulations is replaced by the following:

13 Paragraph 9.2(1)(a) of the Regulations is replaced by the following:

14 Paragraph 9.3(1)(a) of the Regulations is replaced by the following:

15 Subparagraph 10.1(1)(a)(iv) of the Regulations is replaced by the following:

16 Paragraph 10.2(1)(a) of the Regulations is replaced by the following:

17 Paragraph 10.3(1)(a) of the Regulations is replaced by the following:

18 The description of “Col. 7” under the heading “LEGEND” of Schedule 1 to the Regulations and the italicized text after it are replaced by the following:

ERAP Index. This column gives the quantity above which an approved ERAP is required in accordance with section 7.1 of Part 7 (Emergency Response Assistance Plan).

The quantity is expressed in kilograms for solids, in litres for liquids, and, for gases, as the capacity in litres of the means of containment. For Class 1, Explosives, the quantity is expressed either in kilograms of net explosives quantity or, if the explosives are subject to special provision 85 or 86, number of articles.

For dangerous goods included in Class 3, Flammable Liquids, with the UN number UN1170, UN1202, UN1203, UN1267, UN1268, UN1863, UN1987, UN1993, UN3295, UN3475 or UN3494, see paragraph 7.2(1)(f) of Part 7 (Emergency Response Assistance Plan), which sets out the ERAP requirements for those dangerous goods. For Class 6.2, Infectious Substances, see paragraph 7.2(1)(g) of Part 7 (Emergency Response Assistance Plan), which sets out the ERAP requirements for certain human pathogens.

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

If no index is shown, an ERAP is not required unless the dangerous goods are subject to special provision 84 or 150.

19 (1) The portion of UN Number UN2900 in Schedule 1 to the Regulations is amended by striking out “84” in column 5.

(2) The portion of UN Number UN2900 in Schedule 1 to the Regulations is amended by striking out “See SP84” in column 7.

20 Special provision 84 of Schedule 2 to the Regulations and the italicized text after it are replaced by the following:

84 An approved ERAP is required for the dangerous goods referred to in paragraph 7.2(1)(g) of Part 7 (Emergency Response Assistance Plan).

UN2814

21 Special provision 150 of Schedule 2 to the Regulations is replaced by the following:

150 An approved ERAP is required for the dangerous goods referred to in paragraph 7.2(1)(f) of Part 7 (Emergency Response Assistance Plan).

22 The Regulations are amended by replacing “emergency response assistance plan” with “ERAP” in the following provisions:

23 The term “emergency response assistance plan or ERAP or ERP” is replaced by “ERAP” in the italicized list after the heading “Definitions” in Parts 3, 4, 6, 8, 9, 10 and 12 of the Regulations.

24 The Regulations are amended by replacing “Director General” with “Minister” in the following provisions:

Transitional Provision

25 A person may, for a period of nine months that begins on the day on which these Regulations come into force, comply with the Transportation of Dangerous Goods Regulations as they read immediately before that day.

Coming into Force

26 These Regulations come into force on June 1, 2019.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

On July 6, 2013, a 73-car train from Montreal, Maine & Atlantic Railway carrying crude oil rolled away from its parked location and derailed in downtown Lac-Mégantic. This disaster caused 47 fatalities and destroyed the core of Lac-Mégantic. Among other improvements needed to the Transportation of Dangerous Goods Program, the Lac-Mégantic disaster pointed to the need to improve emergency preparedness and response to dangerous goods incidents.

In April 2014, the Minister announced the creation of the Transportation of Dangerous Goods Emergency Response Task Force (ERTF). The membership of the ERTF included carriers, industries, emergency response contractors, first responder groups including First Nations, provinces/territories, municipalities, as well as Transport Canada (TC) and other federal government departments. In addition to its focus on improving public safety of incidents involving flammable liquids transported by rail, the ERTF also had the mandate to make recommendations for improving the Emergency Response Assistance Plan (ERAP) program. An ERAP is a plan that describes the actions to be taken in the event of a release or anticipated release of higher risk dangerous goods while in transport. In July of 2016, footnote 2 the ERTF submitted its final report which presented 40 recommendations. Ten of these recommendations were related to improving the ERAP program and seven of these are addressed in these amendments.

Background

In Canada, the transportation of dangerous goods is regulated under the Transportation of Dangerous Goods Act, 1992 (TDG Act), the Transportation of Dangerous Goods Regulations (TDG Regulations), and standards incorporated by reference into the TDG Regulations. The TDG Act and TDG Regulations comprise the regulatory framework for the ERAP program.

The TDG Act requires any person importing or offering for transport certain higher risk dangerous goods (for example chlorine, propane, crude oil) in quantities specified by the TDG Regulations to have an approved ERAP. In cases where no person is importing or offering for transport, persons handling or transporting these dangerous goods require an ERAP.

The scale of transportation incidents involving the release or anticipated release of dangerous goods and the danger they present require a different approach and strategy than most local authorities are trained to deal with. An ERAP is intended to assist emergency responders by providing them with specialized expertise, equipment, or response teams when needed. It also ensures that the risks associated with transporting these dangerous goods are well understood, and that appropriate measures are in place.

Between 2007 and 2017, TC recorded approximately 360 transportation incidents involving the implementation of an ERAP. There are currently over 1 000 ERAPs approved by the Minister covering nearly 400 dangerous goods.

A number of recommendations from the ERTF were related to improving the ERAP program. These recommendations focused on clarifying the processes for implementing an ERAP and collecting meaningful data to foster the continuous improvement of the ERAP program.

Objective

The primary objectives of the Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan) are to address the recommendations of the ERTF to improve the ERAP program and enhance public safety in the event of an incident during the transportation of dangerous goods. These objectives support the overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada’s economic development and security objectives.

Description

These amendments will

1. Clarifying ERAP implementation

Initial notification through ERAP incident report

An “ERAP incident report” must now be made as soon as possible in the event of a release or anticipated release of dangerous goods that require an ERAP. The ERAP incident report is a mandatory notification made by the person who has the charge, management or control of the dangerous goods to the person who has the ERAP.

Responsibility for ERAP implementation

Under these amendments, the person with the ERAP is responsible for implementing the plan. An ERAP must be implemented when there is a release or anticipated release that endangers or could endanger public safety.

ERAP telephone number

These amendments clarify that calling the ERAP telephone number does not automatically trigger an ERAP implementation and state that a person identified in the ERAP can be reached at any time while the dangerous goods are in transport.

Tiered response levels

In these amendments, two response tiers are introduced, based on the level of response needed to address the release or anticipated release of dangerous goods.

A person who implements an ERAP to tier 1 must

A person who implements an ERAP to tier 2 must

ERAP implementation report

With these amendments, each time an ERAP is implemented to tier 1 or tier 2, an ERAP implementation report must be made by the person listed in the ERAP to the Canadian Transport Emergency Centre (CANUTEC) at 1-888-CANUTEC (1-888‑226‑8832) or 613‑996‑6666 as soon as possible.

2. Enhancing emergency preparedness and response

Additional ERAP application requirements

Additional ERAP requirements were added to better reflect the information needed to review ERAP. A copy of the plan and a potential incident analysis must be included with the ERAP application.

The “potential accident assessment” is renamed “potential incident analysis” and requires the analysis of at least four scenarios for dangerous goods included in the ERAP. The scenarios must include

For each scenario, the following is required:

Specifying who needs an ERAP

Persons who “handle” or “transport” dangerous goods exceeding the quantities specified in the TDG Regulations are also subject to the requirements of an ERAP, should there be no one who is “offering for transport” or “importing” the dangerous goods.

Other amendments (housekeeping)

Authorized users

A person with an approved ERAP may allow another person to use their plan, so that the second person (authorized user) will not need to apply for approval provided that

These amendments simplify the authorization process, as there is no longer a need to notify TC when an authorization to use an ERAP is given or rescinded. However, the authorized user must now show proof of their authorization to use the ERAP, when requested by TC.

Infectious substances

Under these amendments, any quantity of dangerous goods that are Risk Group 4 human pathogens within the meaning of the Human Pathogens and Toxins Act (HPTA) must have an ERAP. As a result, an ERAP will no longer be required for foot and mouth disease virus (FMDV) and Variola (smallpox virus) because they are not Risk Group 4 human pathogens within the meaning of the HPTA.

Definition of residue

The term “residue” is now defined as “the dangerous goods remaining in a means of containment after its contents have been emptied to the maximum extent feasible and before the means of containment is either refilled or cleaned of dangerous goods and purged to remove any vapours.”

Table of quantity reporting

Outside the requirements of an ERAP, an emergency report must be made to local emergency response authorities if there is a release or anticipated release of dangerous goods exceeding the quantities specified in the “Table of quantity for reporting” in Part 8 (Reporting) of the TDG Regulations. This table was corrected to reflect that dangerous goods in Class 3, 4, 5, 6.1 or 8 without an assigned packing group are also subject to the reporting requirements. Previously, these substances were mistakenly excluded.

Terminology for “ERAP implementation”

The term “activate,” with respect to an ERAP, is replaced with “implement” to align with the terminology used in the TDG Act.

Changes to shipping document

These amendments require “ERAP” or “PIU” to be included before or after the ERAP number on a shipping document. The term “ERP” can no longer be used on a shipping document.

“One-for-One” Rule

The “One-for-One” Rule applies, as there is an administrative burden imposed on industry. For example, businesses with ERAPs will need to re-submit their revised ERAP applications; they will need to notify TC when an ERAP is implemented to tier 1 or tier 2. Overall, the proposed amendments would constitute an “IN” as the net administrative burden costs are higher than the reductions.

Administrative burden costs — summary table
Proposed Element Assumptions (Wages in 2012 dollars) In/Out Annualized Value (Over 10 years)
ERAP implementation report

48 reports submitted every year × 30 minutes per report × wage rate of $70 per hour

 In $1,042
Specifying who needs an ERAP

20 applications submitted every year × 1 hour per application × wage rate of $38.67 per hour

 In $486
Additional ERAP application requirements

106 applications submitted in the first year × 1 hour per application × wage rate of $175 per hour

 In $11,574

Infectious substances — removal of foot and mouth disease virus

1 ERAP × 0.25 hour × wage rate of $70 per hour

 Out ($11.57)
Total     $13,090

These amendments result in a net administrative burden cost increase of $13,090 (annualized in 2012 dollars using a 7% discount rate and base year 2012).

Small business lens

These amendments will not result in nationwide cost impacts greater than $1 million annually, and they will not result in costs for small businesses that are disproportionately high. The small business lens will therefore not apply to these proposed amendments.

Consultation

Comments received prior to publication of the proposed Regulations in the Canada Gazette, Part I, on June 30, 2018

The recommendations from the ERTF’s final report in 2016 served as the basis for the key elements of these amendments. Following the submission of the ERTF final report, TC analyzed the recommendations and developed a consultation document laying out policy proposals to be implemented. This consultation document was posted online for comment from March 17, 2017, to May 1, 2017. Key stakeholders, including all those with an approved ERAP, were notified of the consultations by email. Twenty-nine comments were received by email or uploaded to the consultation website during this period. Comments were submitted by industry associations, the chemical and petroleum industry, trucking and rail transportation companies, manufacturers, persons with approved ERAPs, as well as provincial and municipal organizations.

TC also held a consultation by teleconference with the Emergency Response Sub-Committee of the Transportation of Dangerous Goods General Policy Advisory Council (GPAC) on April 25, 2017. In addition, the proposed policy was presented to GPAC at semi-annual meetings in May 2017 and November 2017.

Following these consultations, TC considered the comments received to draft the proposed Regulations for prepublication to the Canada Gazette, Part I.

Some stakeholders questioned how coordination of incident response would take place within a tiered response level approach. TC supports the Incident Command System (ICS) approach, which was recommended by the ERTF. TC encourages stakeholders to become familiar with the ICS and to use the ICS Canada program footnote 3 to ensure coordination of ERAP responses. ICS is a system where multiple authorities and response organizations are integrated into a common organizational structure designed to improve emergency response operations. Regardless of the response tier implemented, resources under the ERAP would complement and engage in the existing ICS structure.

Comments received following prepublication of the proposed Regulations in the Canada Gazette, Part I, on June 30, 2018

The proposed Regulations were prepublished in the Canada Gazette, Part I, on June 30, 2018, and were followed by a 60-day comment period. During that period, TC received 23 submissions representing manufacturers, carriers, distributors, the agriculture sector, the oil and gas sector, industry associations, municipal and provincial governments and other industries. Although the majority of stakeholders support TC’s primary objectives to improve the ERAP program and enhance public safety, the following concerns were raised most frequently during this comment period.

Repealing requirement for authorized users

TC received seven submissions from stakeholders with concerns about repealing the requirement for a written authorization when an ERAP is used by another person. Stakeholders were concerned about unauthorized use of their ERAP (i.e. another company using their ERAP without their consent). Recognizing these concerns, TC added a requirement that when requested by TC, authorized users must provide a copy of their authorization to use another person’s ERAP.

Shipping documents

Six comments were sent to TC with concerns over the additional information required to be on the shipping document. Many stakeholders stated that this added no safety benefit and could be very costly and administratively burdensome. Acknowledging these concerns, TC removed the requirement for the additional information on shipping documents related to the name of the person whose ERAP was approved.

Although some stakeholders did not see value in changing “ERP” to “ERAP,” TC considers this change to be an important safety issue. The “ERP” acronym is outdated and is often confused with other emergency response plans which are not subject to the same requirements of an ERAP. Removing “ERP” from the shipping document will help emergency responders distinguish between an ERAP and emergency response plans from other organizations, such as carriers and local or provincial authorities.

Providing technical or emergency response advice within 10 minutes

TC received eight submissions opposing the proposed requirement that a person who implements an ERAP must provide technical or emergency response advice within 10 minutes of a request. Stakeholders indicated that this 10-minute requirement was not realistic in all situations. Recognizing the need to ensure that appropriate advice is provided quickly, some stakeholders recommended to put the 10-minute timeframe as a guideline. TC acknowledges that in some cases, 10 minutes may not be reasonable and has changed this requirement to “as soon as possible.”

Tiered response levels

TC received four submissions proposing to revert to the three tiered response model for ERAP implementation, recommended by the ERTF. The three tiered model included timelines classified in three tiers: providing technical or emergency advice within 10 minutes (tier 1), technical advisor to attend to incident scene within 6 hours (tier 2) and response team and equipment to arrive at scene within 12 hours (tier 3).

These comments were considered. However, TC maintained the two-tiered response model. Circumstances during a release or anticipated release of dangerous goods can greatly vary, and the implementation of an ERAP must follow a clear and simple model relevant to all industries. The addition of a third tier does not provide added safety benefits. Timelines associated with the three-tiered model proposed by the ERTF will be incorporated in guidance material.

Transition period

Eight submissions were sent to TC opposing the six-month transition period. A 12-month transition period was suggested by some stakeholders, stating that these amendments may require significant changes and present challenges to comply. In consideration of these comments along with TC’s decision to remove the requirement for adding authorized user information to the shipping documents, TC changed the transition period to nine months. This will provide stakeholders an additional three months to adjust to the regulatory requirements. A 12-month transition period would further delay benefits to safety and would delay TC’s ability to collect meaningful data to improve the ERAP program. Also, given that the 12-month transitional period was requested from some stakeholders for the requirement relating to the additional information on the shipping document, TC has determined that 9 months would provide an appropriate balance between achieving safety objectives and accommodating the implementation of the new regulatory requirements.

Costing estimates

Six comments suggested that the wage rates and time estimates used to calculate the costs associated with these amendments were underestimated. Comments also indicated that the costing estimates did not capture the full extent of the changes required to make modifications to shipping documents. Following these concerns, TC contacted stakeholders who expressed that the estimates were too low and requested more information. Five stakeholders provided estimates, which were taken into consideration in revising the wage rates for consultants, internal ERAP writers, and technical advisors as well as costs required to update shipping documents. As a result, the overall estimated costs for these amendments were increased with significant increases made to the estimates related to updating shipping documents. The revised costs are presented in the administration burden costs summary table and the Rationale section.

ERAP telephone number

TC received comments that the wording used to describe the ERAP telephone number was misleading as it implied that the ERAP telephone number is always answered by the person who has the ERAP. TC has modified the wording to correct this.

Guidance material

There was considerable interest for TC to produce guidance material to help stakeholders interpret these amendments. Guides to support the ERAP program and its regulations have been developed. These are based on three themes: determining if you need an ERAP, applying for approval of an ERAP, and having an approved ERAP.

Other consultations

Furthermore, on November 29, 2018, TC presented a summary of what TC heard during the 60-day consultation period and explained considerations in response to these comments to GPAC members. For example, the issues concerning the tiered response levels, shipping documents, transition period, etc., were presented. No further comments were raised concerning the amendment. However, GPAC members raised questions related to the release of the new online system used for ERAP applications. Stakeholders wanted to know if they could continue with the PDF application form, the deadlines for inputting their information in the new online system and what resources TC would provide to help companies learn about the new system.

Regulatory cooperation

When dangerous goods are transported in commerce in the United States, they must be accompanied by emergency response information to help local authorities. However, there is no requirement for a federally approved emergency response assistance plan for mitigating incidents involving the transport of dangerous goods in the United States. Canada’s ERAP program is unique and reflects the Government of Canada’s principle that emergency management is a shared responsibility.

Aligning the definition for “residue” with the definition in the U.S. Department of Transportation Hazardous Materials Regulations — Title 49 of the Code of Federal Regulations (49 CFR) will help ensure consistency and ease cross-border trade for containers with residual amounts. Prior to these amendments, some of the ERAP requirements for shipments containing residual amounts caused some confusion.

Rationale

The Lac-Mégantic disaster pointed to the need to improve emergency preparedness and response of dangerous goods incidents to the Transportation of Dangerous Goods program, which these amendments address. These amendments are necessary to improve public safety during the transportation of certain higher risk dangerous goods and cover 7 out of 10 recommendations related the ERAP program made by the ERTF. These included, for example, clarifying the process of implementing an ERAP, including response tiers and collecting meaningful data for continuous improvement of the ERAP program. Through activities outside of the proposed amendments, TC has already addressed the remaining ERTF recommendations. These amendments support the overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada’s economic development and security objectives.

The total present value costs to stakeholders from these amendments are estimated to be $2,776,496 over the 10-year analytical timeframe. The annualized costs to stakeholders are estimated to be $395,310. Both of these values, as well as all other values listed in the Rationale section, are presented in 2012 dollars using a 7% discount rate with a 2019 base year.

1. Clarifying ERAP implementation

Initial notification through an ERAP incident report

Prior to these amendments, any form of notification by the person who has charge, management or control of dangerous goods requiring an ERAP was not mandatory. When a transportation of dangerous goods incident that endangered or could endanger public safety took place, there was a need to determine whether or not an ERAP needed to be implemented. The addition of an ERAP incident report will ensure that the person with the ERAP has the pertinent information necessary to make a timely and informed decision on whether to implement the plan and to what response tier.

It is estimated that approximately 48 additional ERAP incident reports will be made per year under the amendments, with an overall present value cost to industry of $15,534 over 10 years.

Responsibility for ERAP implementation

Before these amendments, the process to implement an ERAP or who was responsible for implementing the plan was unclear. This confusion was also highlighted by the ERTF. These amendments specify that the person with the ERAP is responsible for implementing the ERAP. This person is often the most aware of how the plan can be implemented and how it can be used to effectively respond to a release or anticipated release.

These amendments would result in negligible costs.

ERAP telephone number

Previously, it could have been misinterpreted that calling the ERAP telephone number (previously referred to as the activation telephone number) listed on the shipping document would automatically trigger an ERAP implementation. These amendments clarify that an ERAP is implemented by the person with the ERAP and that any person can call the ERAP telephone number to receive technical or emergency response advice, without automatically triggering implementation of the plan. The person identified in the plan must be reached at the ERAP telephone number at any time while the dangerous goods that require an ERAP are in transport.

These amendments would result in negligible costs.

Tiered response levels

Prior to these amendments, how or what it meant to implement an ERAP was unclear. Tiers of response, based on two of the ERTF’s recommendations, are included in these amendments to distinguish between responding remotely (tier 1) or on site (tier 2). Implementing a plan does not necessarily mean that emergency response resources found in an ERAP have to be sent to the site of the release or anticipated release. The tiered response model ensures that a release or anticipated release is being monitored by the person who has the ERAP, whether remotely or on site. It also ensures that when an ERAP is implemented, regardless of the tier, technical or emergency response advice must be provided as soon as possible, when requested.

It is expected that the addition of response tiers would result in negligible costs.

ERAP implementation report

Prior to these amendments, there was no requirement to inform the Minister when an ERAP was implemented. This hindered TC’s ability to effectively monitor the response to a release or anticipated release and intervene if an ERAP was not being implemented effectively. The ERAP implementation report will also provide an opportunity for CANUTEC to provide advice, when needed. Additionally, the report provides TC with a means of tracking ERAP implementations and evaluating whether an ERAP response was timely, appropriate, safe and coordinated.

It is expected that an implementation report to CANUTEC would be at most 30 minutes in length. Costs associated with the ERAP implementation reporting are expected to be low with an estimated present value cost of $11,748 over the 10-year period.

2. Enhancing emergency preparedness and response

Additional ERAP application requirements

The additional ERAP application requirements set out in these amendments will ensure that applicants have appropriate equipment, personnel, capabilities and agreements with third parties, where applicable, for response. The information provided through these requirements will facilitate the review of ERAP applications so that TC can ensure that the plan can be implemented and will be effective at responding to a release or anticipated release. The additional requirements will also provide TC with information to help monitor the effectiveness of the ERAP program and foster continuous improvement.

Prior to these amendments, the potential accident assessment only required a general analysis of how a release or anticipated release could occur, a general description of the potential consequences and the response actions to be taken by the applicant. Requiring applicants to describe their response to four different scenarios using a potential incident analysis will help them plan and gain a comprehensive understanding of what is involved in a response using their ERAP. Persons who are more prepared and aware of the consequences following incidents with their dangerous goods can better understand their role, resulting in a more efficient implementation of the ERAP and overall response.

Since persons with approved ERAPs were already required to renew their ERAPs, it is expected that they would, on average, need an additional 10 hours to supplement their ERAP to meet the requirements of these amendments. Therefore, it is estimated that approximately 106 persons would be updating their ERAPs per year footnote 4 with an overall estimated present value cost to the industry of $1,305,370 over 10 years.

Specifying who needs an ERAP

Prior to these amendments, some people seemed to think that an ERAP would not be required for persons who “handle” or “transport” dangerous goods. These amendments will align the Regulations with the TDG Act by adding that persons who “handle” or “transport” dangerous goods in quantities specified in the TDG Regulations are also subject to the ERAP requirements, should there be no one in Canada who is offering for transport or importing the dangerous goods.

TC currently has over 1 000 ERAPs and these amendments are expected to yield a 10% increase, or approximately 100 more ERAP applications in the first year. However, there is a possibility that some of these persons, such as carriers, may seek to be authorized users rather than create their own ERAP and apply for approval, which would reduce the costs of compliance. The average length of time it takes to collect information and complete an ERAP application is estimated to be 30 hours. The estimated cost to prepare an ERAP is based on third-party fees, which are estimated at $175 per hour. Based on the hourly fee and an ERAP renewal rate of once every 5 years, the total present value costs are estimated to be $744,061 over the 10-year period.

3. Other amendments (housekeeping)

A number of minor updates, corrections and changes were made to improve the readability of the TDG Regulations and help stakeholders comply with the Regulations. Definitions have been updated to reflect current practices in the transportation of dangerous goods. In addition, changes have been made to align the terminology between the TDG Act and the TDG Regulations. For instance, the ERTF noted that the circumstances and meaning of “activation” have been raised as problematic and unclear. These amendments will align with the TDG Act by replacing the term “activate” with “implement,” as there are no references to the activation of an ERAP in the TDG Act.

Replacing “ERP” with “ERAP” on the shipping document may result in a wide range of costs for businesses. Some businesses already have “ERAP” on their shipping document and will not need to alter their shipping documents. Other businesses will need to add an “A” to “ERP.” Depending on the complexity of the shipping document system in place, a simple change of adding a character to the shipping document may require minimal costs for some, while other stakeholders may require significant IT resources to change the design and format of shipping documents. The costs for businesses with an ERAP range from $0 to $10,000. Overall, this change to the shipping document is estimated to cost $563,766 (present value) to industry.

Infectious substances

Prior to these amendments, infectious substances requiring an ERAP were listed by name in the TDG Regulations. To ensure that existing and emerging high risk pathogens are captured within the ERAP requirements, infectious substances within the meaning of Risk Group 4 human pathogens of the HPTA now require an ERAP. This implies that an ERAP would no longer be required for FMDV and smallpox virus, as they are not Risk Group 4 human pathogens within the meaning of the HPTA. The Canadian Food Inspection Agency (CFIA) is the only entity that may transport FMDV and has their own emergency response plan for all biological shipments in transit. The smallpox virus is a prohibited human pathogen under the HPTA and, as a result, transportation of the smallpox virus is forbidden. Therefore, there is no need for an ERAP for the smallpox virus.

These amendments would result in estimated present value cost savings of $131.

Implementation, enforcement and service standards

These amendments will come into force on June 1, 2019. Businesses will have a transition period of nine months to comply with the new regulatory requirements.

The proper implementation of regulatory amendments is a key aspect of the regulatory life cycle. Once regulatory amendments become law, the Transportation of Dangerous Goods Directorate will develop new training and awareness material for inspectors and stakeholders. New regulatory requirements will be disseminated using a communication network that is already well established. Some of the main tools used to implement regulatory changes are the following:

Compliance with the TDG Act and the TDG Regulations is verified through inspections. These inspections are carried out at the federal level and the provincial/territorial level and involve all persons involved in the transportation of dangerous goods. These amendments will assist TDG inspectors and Remedial Measures Specialists (inspectors who specialize in ERAPs) in verifying compliance with the requirements of the TDG Act and TDG Regulations regarding ERAPs. Information will be provided to these inspectors to keep them updated and aware of the requirements.

The TDG Act requires any person importing or offering for transport certain dangerous goods in quantities specified by the TDG Regulations to have an approved ERAP. In cases where no person is importing or offering for transport, persons handling or transporting these dangerous goods require an ERAP. A person who contravenes a provision of the Act could be subject to fines up to $50,000 for a first offence and up to $100,000 for subsequent offences, and/or imprisonment of up to two years.

The TDG Act provides the Minister with the authority to direct a person with an approved ERAP to implement the plan as approved, within a reasonable period, to respond to a release or anticipated release of dangerous goods to which the plan applies. Failing to comply with such direction may result in the ERAP being revoked. Furthermore, in accordance with the TDG Act, the Minister may revoke the approval of an ERAP if

Contact

Geneviève Sansoucy
Chief
Regulatory Development Division
Transportation of Dangerous Goods Directorate
Department of Transport
Place de Ville, Tower C
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Email: tc.tdgregulatoryproposal-tmdpropositionreglementaire.tc@tc.gc.ca