ERAP Changes Potentially Extend Beyond Rail Tankers

Are You Implicated?

Wording of amendment includes highway tankers, IBC, for UN1993, etc.

Recently, I wrote about the December 31 (SOR/2014-306) amendment to the TDG regulations, which contained a change to the substances requiring an ERAP (TDG-approved Emergency Response Assistance Plan) under Part 7.

As worded, the ERAP obligation extends to consignors of the specified flammable liquids in any shipment  of an accumulation of large means of containment (LMOC) i.e. capacity exceeding 450L) exceeding 10,000 L or any individual LMOC containing more than 10,000 L.

The intent was to incorporate the ERAP requirement for petroleum/petroleum-like products being shipped by rail tanker as contemplated in the post-Lac-Mégantic Protective Direction 33.

This was clearly stated in the Regulatory Impact Statement accompanying the Gazette II notice.

[What follows, by way of disclaimer, may seem like a bit of a regulatory wonk’s snore- but it does illustrate the importance of keeping aware (and sometimes involved) in regulatory aspects of your business. Onward.]

A similar provision was already in place for things like gasoline (UN 1202) by means of a Special Provision (rather than a direct trigger quantity) in Column 7 of Schedule 1. This Special Provision 82 bypassed the normal criteria of section 7.1(1) & (3), invoking 7.1(6) limiting the rail tanker criteria as applicable to the 3 designated UN numbers.

In extending the ERAP requirement to another 8 substances, some of which are commonly shipped by highway tanker &/or IBC (intermediate bulk containers- totes), the amendment repealed Special Provision 82, entered a 10,000 L “trigger” in Column 7 of Schedule 1 and reworded 7.1(6) to list the additional 8 UN numbers.

Consequences

The unintended consequence of this well-meaning change was that there is no longer a logical exclusion of the listed substances from the provision requiring an ERAP for modes/containers other than rail tank cars. Thus in the absence of qualifying statements in 7.1(6), the section became redundant and the broader 7.1(1) and (3) apply to all of these 11 UN numbers having an ERAP “quantity limit”.

A minor change (recognized as an error by Transport Canada) to the wording of 7.1(6) indicated application of the paragraph to “railway vehicle” rather than the original “rail tank car”- i.e. now freight cars &/or intermodal tanks by rail are captured by this clause as well as by 7.1(1) & (3).

Transport Canada has recognized this weakness in wording and has advised that the latter issue will be corrected by publishing an erratum or corrigendum, expected in the January 28, 2015 Gazette II. The broader issue of restricting ERAP the requirement to rail (or qualifying its application to other modes) may require a regular amendment.

In the interim to the latter, it will be interesting to see if Transport Canada issues some sort of administrative direction on delaying enforcement of the extension beyond rail tank cars.

A related topic (perhaps for a future Blog) is the removal, in June 2014, of the requirement for Transport Canada to publish a copy of proposed regulations in Gazette I- TDG Act s. 30.(1), (2). There was intensive consultation on the change, but wider circulation of the actual proposed wording might have avoided the confusion.

ICC will continue to follow and report on developments to this and other regulatory changes.


More info on TDG SOR/2014-306 »


Do you have any questions regarding the Gazette II, December 31, 2014 update? Contact ICC Compliance Center here at 888-442-9628 (U.S.) or 888-977-4834 (Canada), and ask for one of our regulatory specialists.

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