On May 1, 2019, Transport Canada issued an amendment to Part 7 of the Transportation of Dangerous Goods Regulations (TDG). This part covers the requirements for Emergency Response Assistance Plans, or ERAPs. Details can be found at http://www.gazette.gc.ca/rp-pr/p2/2019/2019-05-01/pdf/g2-15309.pdf.
ERAPs are unique to Canada, and are intended to ensure support for local responders in catastrophic spills, such as the 2013 Lac-Mégantic derailment. Essentially, they require consignor of significant amounts of high-risk dangerous goods to establish a specific protocol, often involving an on-call response team, that can assist local responders in case of a release. Transport Canada must review and approve the plan before the consignor can offer or import affected shipments (although the approval only has to be issued once.)
The amendment has three main goals:
- clarify ERAP implementation and reporting;
- enhance emergency preparedness and response; and
- make housekeeping changes that address smaller issues.
The amendment replaces all the text of Part 7, although unamended requirements will remain the same. Changes also occur in Parts 1, 3 and 8.
Clarifying Implementation of ERAPs
The original requirements of Part 7 didn’t go into any detail as to how an ERAP would be implemented – presumably it would be by emergency responders or by the person with control of the released material, but it’s never been established precisely. The amendment addresses initial notification of an accident requiring ERAP response, and clarifies that the person with the ERAP is responsible for implementing the plan.
Unfortunately, the requirements for triggering an ERAP are still variable. For some classes, the ERAP is triggered for quantities of large means of containment, for other classes the trigger quantity also includes small means of containment.
This amendment establishes a “two-tiered” response, based on the level of response needed to address the release or anticipated release of dangerous goods. The application for approval for the plan must address the tiers as applicable. Tier 1 involves response that can be done remotely (such as by telephone), while Tier 2 is for situations that require on-site response.
According to Transport Canada, the tiers will work as follows:
“A person who implements an ERAP to tier 1 must provide technical or emergency response advice as soon as possible after a request for advice; and remotely monitor the response to the release or anticipated release. A person who implements an ERAP to tier 2 must provide technical or emergency response advice as soon as possible after a request for advice; monitor the response to the release or anticipated release; and send ERAP emergency response resources to the location of the release or anticipated release. “
Strangely, the regulations themselves do not define what triggers “tier 1” and “tier 2” responses. This would presumably be done in the registration process of each individual plan.
Enhancing Emergency Preparedness and Response
When making an application for approval of an ERAP, the prospective holder is required to submit the request to Transport Canada. The amendment will give much more detail on what this submission should entail, including a “potential incident analysis.” This analysis must cover scenarios such as minor releases, major releases and fires, as follows:
- an anticipated release;
- the release of less than 1% of dangerous goods in a means of containment; – the release of more than 50% of the dangerous goods in a means of containment; and
- the exposure to fire of a means of containment that contains dangerous goods.
For each scenario, the plan must include:
- the potential consequences of the release or anticipated release;
- the measures, organized by tier, to be taken to respond to the release or anticipated release for each scenario; and –
- the identification of the persons responsible for taking – the actions.
The new section 7.8 addresses implementation – who, and how, a plan would be implemented. Interestingly, one part forbids someone from “preventing another person who has an approved ERAP from taking emergency measures in response to a release or anticipated release.”
Changes have been made to Part 8, Releases, regarding the reporting of spills involving ERAPs. This report must be made for any release of dangerous goods, or radiation greater than the level established in section 39 of the “Packaging and Transport of Nuclear Substances Regulations, 2015.” The person in charge of the goods at the time of the emergency must report the incident, with relevant details, including information such as the type and quantity of dangerous goods released, the mode of transport and the ERAP reference number, to the person at the ERAP reporting number on the document.
Also, each time a person implements an approved ERAP to tier 1 or tier 2, that person must make a telephone report to CANUTEC as soon as feasible. The report must include details laid out in a new section 8.21, including details about the incident and whether it involved a tier 1 or tier 2 release.
Reducing the Regulatory Burden
The amendment takes a significant step in reducing regulatory burden on companies who wish to extend their plan to other groups, such as downstream shippers. clarifies authorized users of the plan, allowing ERAP holders to allow other persons to use their plan (such as a downstream shipper), without the second person needing to get a separate approval from Transport Canada.
The amendment has dropped the proposed requirement that the words “used under the authorization of” be shown on the shipping document when this occurs. However, the authorized user must keep a copy of the written authorization from the original holder for at least two years, and produce it within fifteen days upon request by Transport Canada.
Section 7.4 now allows emergency response contractors to register their ERAPs, even though they are not required to have one.
The amendment fixes some issues that exist outside Part 7 in TDG. For example, it replaces the word “activate” in relation to ERAPs with the word “implement.” The amendment also addresses a current gap in Part 8, Reporting, where currently goods in classes 3, 4, 5, 6.1 or 8 are not found on the table for reporting quantities if they have no packing groups. Finally, it eliminates “ERP” as a header for the telephone number on shipping papers. The shipping document must now use “ERAP” as the required designation in English (“PIU” is unchanged for French.)
The definition of “residue” in section 1.4 has been changed, which may affect ERAP response. The new definition calls a residue “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.”
Sections 7.9 to 7.11 address compensation to planholders if, in accordance with the Transportation of Dangerous Goods Act, Transport Canada implements their plan for situations when a registered plan-holder cannot be identified.
The amendment clarifies the requirements for ERAPs for infectious substances. Instead of a list of specific pathogens, the requirement for an ERAP for any quantity will now apply to all Risk Group 4 pathogens listed in the Human Pathogens and Toxins Act.
Finally, since the ERAP requirements have changed so much, the Legend to Schedule 1 has been updated in respect to Column 7.
The official date the amended regulations come into force is June 1, 2019. However, there is a nine-month transition period incorporated, which will allow persons to use the old rules until March 1, 2020.
The amendments will certainly make some changes to how ERAPs work. Do you have any questions about ERAPs or other requirements in the TDG Regulations? If you’d like more information, contact ICC Compliance Center here at 888-442-9628 (U.S.) or 888-977-4834 (Canada), and ask for one of our regulatory specialists.