ARCHIVED — Regulations Amending the Transportation of Dangerous Goods Regulations

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Vol. 143, No. 18 — May 2, 2009

Statutory authority

Transportation of Dangerous Goods Act, 1992

Sponsoring department

Department of Transport

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 the Transportation of Dangerous Goods Regulations (TDG Regulations) are intended to promote public safety in the transportation of dangerous goods in Canada.

The proposed Regulations Amending the Transportation of Dangerous Goods Regulations would address the following issues, raised after the publication in Part II of the Canada Gazette of Amendment 6 (SOR/2008-34, February 20, 2008), related to a 150 kg exemption for dangerous goods that are available to the general public and the provisions that specify when an Emergency Response Assistance Plan (ERAP) is required.

(1) 150 kg exemption

 Issues raised by industry regarding the risk that up to 150 kg of exempted dangerous goods could be introduced into the transport chain without any associated documentation or marking;

(2) ERAP requirements

 (a) Interpretation, implementation, and enforcement issues raised regarding the requirements for a person to have an approved ERAP; and

 (b) Safety risks raised by industry, Transportation Safety Board of Canada and emergency responders regarding the accumulation of large quantities of dangerous goods in interconnected means of containment.

The proposed amendments would not impact the intent or the scope of the TDG Regulations, would increase safety, and would reduce the compliance burden on industry.

Description and rationale

150 kg exemption

Section 1.15 of the TDG Regulations deals with the 150 kg Gross Mass Exemption. Before Amendment 6 to the TDG Regulations, this section provided an exemption from the TDG Regulations to the general public to transport up to 150 kg of certain dangerous goods for personal use. Amendment 6 extended the exemption beyond the general public to include all persons handling, offering for transport or transporting up to 150 kg of certain dangerous goods.

There is a potential risk to public safety with the current situation in that third parties could introduce these exempted dangerous goods into the transportation chain without the carrier knowing that dangerous goods are being offered for transport. This could lead to an economic disadvantage for those who incur additional costs by fully complying with TDG Regulations when offering for transport 150 kg or less of dangerous goods to a commercial carrier. The proposed amendment to section 1.15 would require that only the user, purchaser or retailer transport the dangerous goods and that the dangerous goods be in a quantity or concentration available to the general public.

The proposed amendment to section 1.15 is not intended to limit the scope of the exemption or to prevent industry from taking advantage of the exemption. The proposed 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.

The word “retailer” is not defined in the TDG Regulations but, as noted in the italicized text after the title of section 1.4, Definitions, words that are not defined in the TDG Regulations can be found in a dictionary or a scientific or technical handbook, journal or text or a similar publication.

ERAP requirements

Section 7.1 of the TDG Regulations deals with the requirements for an ERAP. Before Amendment 6, this section had five subsections. Amendment 6 increased the number of subsections from five to nine. The format in this proposed amendment, with 11 subsections, is intended to present the requirements in a more progressive and clearer manner. As a consequence, the proposed subsections are reorganized and renumbered. The proposed text would clarify the intent and would address interpretation or implementation issues raised by industry or enforcement authorities.

The proposed subsection 7.1(1) deals with dangerous goods that have the same UN number, are in a single means of containment, and are in a quantity that exceeds the ERAP limit (the limit is quantity above which an approved ERAP is required; the limits are based on the hazards associated with the dangerous goods). For example, a propane delivery truck or an Ebola virus sample in a small means of containment would most likely fall into this category.

The proposed subsection 7.1(2) deals with dangerous goods that have the same UN number and are in an accumulation of small means of containment. A small means of containment is defined in section 1.4, Definitions, as a means of containment with a capacity less than or equal to 450 L.

The proposed subsection 7.1(3) deals with dangerous goods in an accumulation of large means of containment. Amendment 6 had 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% of the ERAP limit. The amendment would eliminate 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. Public safety would not be compromised as a result of this amendment.

The proposed subsection 7.1(4) deals with an accumulation of explosives that have an ERAP index. The concept of counting explosives with the lowest index number 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. The proposed subsection 7.1(4) would ensure that shipments of explosives in quantities requiring an ERAP do in fact have one.

The proposed subsection 7.1(5) is new and addresses the accumulation of interconnected means of containment, where each means of containment has a capacity greater than 225 L, containing dangerous goods included in Class 2, Gases. The subsection is intended to capture cylinders and tubes that are interconnected (transported in what is usually referred to as a tube trailer). The proposed change would recognize 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 would address 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 proposed subsection 7.1(6) deals with certain flammable liquids transported in a single train. Currently, an ERAP is required when 34 or more rail tank cars are, on average, 70% full. The proposed subsection 7.1(6) would lower the number of rail tank cars to a “string” of 17 or more that are 50% or more full. This change would avoid combinations of strings of rail tank cars where the average quantity of flammable liquids would be less than 70% and, therefore, an ERAP would not be required. The industry supports this change.

The proposed subsection 7.1(7) deals with infectious substances and it is essentially the same as in Amendment 6.

The proposed subsection 7.1(8), subsection 7.1(4) in Amendment 6, 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 proposed text returns to the wording before Amendment 6.

The intent of proposed 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 proposed subsections 7.1(10) and 7.1(11) are the same as subsections 7.1(8) and 7.1(9) in Amendment 6.

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

In accordance with the 1999 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, and the Transport Canada Policy Statement on Strategic Environmental Assessment, a strategic environmental assessment (SEA) of the amendments was conducted, in the form of a preliminary scan. The SEA concluded that the amendments are not likely to have important environmental implications.

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 TDG Directorate received a number of letters from concerned individuals and companies regarding the changes that were made to section 1.15 in Amendment 6. Specifically, the concerns centred on the removal of the condition that the dangerous goods had to be transported by the purchaser. Commenters believe that the current wording of section 1.15 poses safety concerns for the commercial trucking industry and could allow these dangerous goods to be offered for transport by aircraft. Commenters pointed out that they believe the intent of section 1.15 is to allow a regulatory relaxation for contractors and for the general public to transport dangerous goods from retail outlets to the place of use, but that the intent was not to allow the dangerous goods exempted in section 1.15 to be transported commercially, that is, by third parties. The proposed amendment would respond to these concerns by requiring that only the user, purchaser or retailer transport the dangerous goods and that the dangerous goods are in a quantity or concentration available to the general public.

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 ensure that the various safety standards, rules and requirements of the TDG Act, 1992 and the TDG Regulations are complied with.

The proposed amendments would have little impact on the TDG Directorate’s Compliance Strategy, which is based on the premise that if dangerous goods are correctly prepared and safely offered for transport, the probability of the dangerous goods reaching their destination safely is very high. 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.

Contacts

For further information on the Regulatory Impact Analysis Statement, please contact

Mr. Claude Fournier
Program Evaluation Analyst
Research, Evaluation and Systems Branch
Transport Dangerous Goods Directorate
Department of Transport
Place de Ville, Tower C, 9th Floor
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: 613-998-5238
Fax: 613-993-5925
Email: claude.fournier@tc.gc.ca

For further information on the amendments to the TDG Regulations, please contact

Ms. Linda Hume-Sastre
Director
Legislation and Regulations Branch
Transport Dangerous Goods Directorate
Department of Transport
Place de Ville, Tower C, 9th Floor
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: 613-998-0517
Fax: 613-993-5925
Email: linda.hume-sastre@tc.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 30(1) of the Transportation of Dangerous Goods Act, 1992 (see footnote a), that the Governor in Council, pursuant to section 27 of that Act, proposes to make the annexed Regulations Amending the Transportation of Dangerous Goods Regulations.

Interested persons may make representations concerning the proposed Regulations to the Minister of Transport, Infrastructure and Communities within 75 days after the date of publication of this notice. All such representations must be in writing and cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Linda Hume-Sastre, Director, Legislation and Regulations Branch, Transport Dangerous Goods Directorate, Department of Transport, Place de Ville, Tower C, 9th Floor, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (tel.: 613-998-0517; fax: 613-993-5925; e-mail: linda.hume-sastre@tc.gc.ca).

Ottawa, April 23, 2009

MARY PICHETTE
Assistant Clerk of the Privy Council

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):

(d) the dangerous goods are in a quantity or concentration available to the general public and are transported

(i) by a user or purchaser, or

(ii) by a retailer to or from a user or purchaser.

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) in 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 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 total quantity of those dangerous goods exceeds the ERAP limit referred to in subsection (8).

Subsection (2) deals with an accumulation of small 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 small means of containment must have an approved ERAP if the total quantity of those dangerous goods exceeds the ERAP limit referred to in subsection (8):

(a) Class 3, Flammable Liquids, with a subsidiary class of Class 6.1, Toxic Substances;

(b) Class 4, Flammable Solids, Substances Liable to Spontaneous Combustion, Substances That on Contact with Water Emit Flammable Gases (Water-reactive substances);

(c) Class 5.2, Organic Peroxides, that are Type B or Type C; and

(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 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 exceeds the ERAP limit referred to in subsection (8).

Subsection (6) deals with tank cars in a single train 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, in a single train, rail tank cars that contain dangerous goods having the UN number UN1202, UN1203 or UN1863 must have an approved ERAP if

(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

(b) 17 or more of the rail tank cars are each 50 per cent or more full.

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:

(a) Crimean-Congo Hemorrhagic fever virus;

(b) Ebola virus;

(c) Foot and mouth virus cultures;

(d) Guanarito virus;

(e) Hendra virus;

(f) Herpes B virus (Cercopithicene Herpesvirus-1) cultures;

(g) Junin virus;

(h) Kyasanur Forest virus;

(i) Lassa virus;

(j) Machupo virus;

(k) Marburg virus;

(l) Nipah virus;

(m) Omsk hemorrhagic fever virus;

(n) Russian Spring-Summer encephalitis virus;

(o) Sabia virus; and

(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

(a) if a solid, have a mass that is greater than the index number when that number is expressed in kilograms;

(b) if a liquid, have a volume that is greater than the index number when that number is expressed in litres;

(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

(d) if an explosive

(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

(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 may show on a shipping document

(a) the ERAP number of an approved ERAP held by a manufacturer, producer or distributor of the dangerous goods, if the dangerous goods are being returned to the manufacturer, producer or distributor and

(i) the approved ERAP applies to the dangerous goods,

(ii) the person who holds the approved ERAP gives permission in writing for the number of that approved ERAP to be shown on the other person’s shipping document, and

(iii) the person who holds the approved ERAP agrees to respond to an emergency on behalf of the other person; or

(b) the ERAP number of an approved ERAP held by any other person, if the dangerous goods originate outside Canada, are transported through Canada to a destination outside Canada and the conditions set out in subparagraphs (a)(i) to (iii) are complied with.

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) Whether or not another person’s ERAP number is shown on a shipping document in accordance with subsection (9), the person who offers for transport or imports dangerous goods remains responsible for emergency response assistance as required under the Act.

(11) 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 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 85 or 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 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. 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

7. 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

COMING INTO FORCE

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

[18-1-o]

Footnote a
 S.C. 1992, c. 34

Footnote 1
 SOR/2001-286