Tuesday, May 18, 2004
Introductory Remarks By Chairperson
Mr. John Mills, Regional Director, Surface opened the consultation session by welcoming participants to the meeting and outlining the meeting agenda.
Presentation Of the TDG Act and the Review Process
Mr. Raymond Auclair, Director of Research Evaluation and Systems, Transport Dangerous Goods, opened the presentation period with an explanation of the TDG Act and the purpose and procedures of the review.
Here is a copy of the slide presentation on the Review and the Act used by Mr. Auclair.
Presentations by Participant
During the meeting, there was one official presentation, followed by an open discussion period. Mr. Bob Good presented on behalf of the Propane Gas Association of Canada.
Here is a copy of the presentation by the Propane Gas Association of Canada.
Following the presentation period, there was time reserved for questions and answers. We received questions and comments about the TDG Act, the TDG Regulations, the program and the review process itself. We have tried to summarize the topics in this list. Some portions of the “answers” were added after the fact for the purpose of encouraging future discussions.
A-1 Security plans for dangerous goods that require and ERAP. Currently, the information required in Canada is more than what is required in United States (the U.S. does not have as system comparable to Emergency Response Assistance Plans). A security plan for ERAP-goods would need to be comparable with whatever the USA requires for the same goods in the USA., but may still be different in form.
A-5 TDG Security Clearance Certificate. Will the Canadian system attempt to coordinate security certificates with the United States?
Yes. One driving force behind a Canadian system will be to convince the Americans that the Canadian system is equivalent. Without that equivalence, we will end up with two overlapping system for persons crossing the border. Fortunately, there are already a few systems in Canada (e.g., FAST, by the customs agency) that could be considered equivalent by the USA. There may be others.
B-5 People who screen persons or means of containment. An issue was raised regarding CATSA's (Canadian Air Transport Security Authority). Participants felt that CATSA should be covered by the TDG Act, given their responsibility to screen and identify dangerous goods. One proposal that was discussed: If CATSA is not covered by the TDG Act, they should be covered by another Act that requires compliance with the TDG regulations.
At present, the TDG Act does not apply to individuals or organizations that do not handle, offer, import or transport dangerous goods (or standardized means of containment). It may be a good idea to ensure that they are trained; however; the question remains: should this obligation be imposed through the TDG Act?
B-8 “Non-Dangerous Goods” carriers. A comment was raised to address the lack of training for “non-dangerous goods” carriers. If a carrier is not trained in the identification of dangerous goods, then how can they be expected to identify if they are transporting a dangerous good or not? It is important to send this comment for the review of other Acts and Regulations as well. In this situation, they are not aware that they are handling dangerous goods until it is too late. It was also indicated that a similar comment could apply to organizations such as Canada Post.
At present, the TDG Act does not apply to individuals or organizations that do not handle, offer, import or transport dangerous goods (or standardized means of containment). It may be a good idea to ensure that these individuals are trained; however; the question remains: should this obligation be imposed through the TDG Act?
C-5 Documents that an inspector may request or see. It is difficult to know which inspector is going to request what documentation, especially in the case of inter-provincial traffic (e.g., a permit is acceptable in one province, but not in another). If safety is not jeopardized, why would one-level of government not accept documentation accepted by another?
The TDG Act authorizes any inspector to request any document that the Act allows her or him to see. It would be difficult to change that in a workable way (it is like saying that a police officer is not allowed to request your driver's license because you have already shown it to someone else earlier). As for the permit issue: the provincial and federal legislations are legally distinct. The TDG Act does not preempt provincial statutes, nor vice-versa. It may be that one thing is considered safe in one province while it is not considered safe in another (e.g., turning right on a red light). Certainly, it would be easier on everyone if TDG permits were multi-jurisdictional (and this makes it a discussion for issue C-8).
C-8 Federal-Provincial-Territorial Considerations. There areinconsistencies between provinces, TC regional operations, and different enforcement bodies within a region. This makes it extremely difficult for companies to operate in multiple regions. A suggestion was made to create a technical committee for future reviews and to ensure standardization across Canada for the enforcement of transportation of dangerous goods regulations.
Inconsistencies should be reported when identified so that proper steps can be taken to investigate any discrepancies. In terms of a review committee, the Act could possibly incorporate a section allowing for the creation of a committee to monitor and interpret these issues. This issue is also related to the TDG regulations (in that these problems often arise in terms of the regulations, not the act). It is possible that such a committee could be formed without the need of a special reference in the TDG Act.
C-8 Federal-Provincial-Territorial discrepancies in legislation. TDG inspectors are approving training programs, but it was suggested that inspectors do not have sufficient knowledge to evaluate training programs. There is also a lack of regional consistency in this area, resulting in an unequal application of the Act. Training programs approved in one region may not be approved in another. There is an economic impact because the industry is required to jump through hoops.
The TDG Act does not authorize TDG inspectors to approve (or disapprove) training programs.
D-1 Permits. Is the purpose of a permit to grandfather the acceptance of certain activities? If a permit already exists, does this exempt the need for future permits?
We do treat some permits as future regulations. Every time we update the regulations, decisions are made to use permits, drop permits, etc. If we incorporate a permit into the regulations, then it becomes a universal application. This is not always the desired result. In addition, we do not control permits issued by a province under provincial statutes.
E-4 International and inter-program harmonization and reciprocity. The industry would like to see more harmonization between enforcement. This creates a problem when applying acts and regulations. What happens in a situation where one inspector approves an activity, and that activity is later ticketed by another inspector?
We are looking into this issue, however the TDG Act only pertains to inspectors designated by the TDG Act.. The same activity could fall under the jurisdiction of other federal laws, provincial statutes, by-laws, etc. In general, no inspector has precedence over another. Although many different kinds of inspectors may be permitted to inspect a given site, we try not to have particular areas or industries that are over- or under- inspected (we simply can't afford that with our level of resources). If an inspector gives an authorization for a given situation, that is then ticketed by another, “official misguidance” could be used as a court defense. Although the elimination of overlapping legislation would clarify jurisdiction, it could allow for gaps. This is not desirable when public safety is involved. Finally, one must be careful that the fact of not getting a ticket from one inspector is not, by itself, a guarantee that the situation is infraction-free. In general, the TDG Act does not address the possibility for an inspector to “approve an activity”.
E-5 Links with Other Programs. Which act has precedence, ICAO or TDG?
No act has precedence over another. Multiple acts can apply. Any conflicts should be identified and reconciled prior to implementation, and immediately upon discovery. In practice, we try to apply the same principles for provincial vs federal legislation. Remember too that if one is able to comply with both (by applying the stricter requirement), then there is no conflict: both requirements apply.
F-4 Ticketing.Why is ticketing not being considered as part of the review?
The current Act already allows for ticketing, however it has not been implemented.
ERAP and E-2 Consolidation. Is TDG communicating with Environment Canada regarding the consolidation of ERAPs?
There is some communication between Environment Canada and TDG.Ideally, if an ERAP already exists, a second plan would not be required. However, our ERAP may need to add some additional information in order to meet the information requirements of Environment Canada.
Expiration of Standards and Regulations. ICAO Amendments are released every two years, and the TDG regulations are updated to refer to most recent version. This causes a problem for the industry because older versions become outdated frequently.
The TDG Act does allow for the most recent version of ICAO Technical Instructions, IMDG code, and 49 CFR to be used as “updated from time to time”. This means that the new version can be applied before it is referenced in the TDG regulations. During this period, both the new and the previous version may be used. Once the TDG regulations are updated, the older versions are no longer valid for reference.
Courts Interpretation of “due diligence”. The interpretation by the court is difficult to determine, however it is linked to the regulation in place, and the type of infraction. Due diligence is an instrument to be used by defense. Predicting how the court will rule on this defense is beyond my capabilities (meaning: I cannot print a guide to describe “due diligence”). The objective is to convince the court that you have done everything in your power to prevent the commission of the infraction. Some say that once a particular due diligence defense has been used, it cannot be used again: the second time, the judge should point out that since last time, you now know that what you used to do turned out to be insufficient to prevent the infraction...
Courts Interpretation &Employee Training. The court will look at every incident individually. The TDG Act does not define “competence”, however it is the employers responsibility to prove that employees have been trained to a level “when the employer is satisfied”. The Act specifies that employees must be trained, but not to what extent. It is employer's responsibility to determine if employees are sufficiently trained to comply with the regulations. Even in a situation where an individual scores a passing grade for a training certificate, they may not be suitably trained. If due diligence is used, this sets precedence and that particular “due diligence” cannot be used later for the same offence.
An after-the-fact comment regarding training “standards”: It is often stated (even by us) that there are no minimum training standards. Yet there is one: the TDG Regulations. The purpose of training is to remove the possibilities that unsafe situations will be allowed to occur (or, if they occur accidentally, then that employees will know what is expected of them). What is needed to satisfy this objective? Compliance with the regulations.
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