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Presentation on the TDG Act Review

Presentation used by Raymond Auclair, Director Research, Evaluation and Systems Branch, Transport Dangerous Goods Directorate.

Welcome

• Launch of the public consultation
• A nine step process to review an act
• This is the beginning of the process
• Open to regulated industry, users of dangerous goods, emergency responders, public officials, all citizens...
• All information available on our Web site

Public consultation

• Any person may raise an issue, that is a perceived problem with the TDG Act
• At this stage, we collect comments, we do not try to defend the present Act.
• Our promise: we will listen (or read) until we understand your issue
• We will not try to argue you out of it
• Decision making begins in November 2004.

Existing list of issues

• They are simply issues that we have accumulated over the years, from comments received since 1992 and from our talks on security issues in 2002 and 2003.
• Except for category A, the listed issues do not have special status.  Security issues have had more discussions with industry and agencies responsible for public security.

Security vs Safety

• Safety:  what everyone does in order to avoid bad consequences;  transparency enhances safety (everyone knows what to do)
• Security: what we must do in case some persons want to cause bad consequences; transparency may sometimes hurt security (e.g., passwords should not be in regulations)

Review of the TDG Act

• Transportation of Dangerous Goods Act, 1992
• Royal Assent on June 23, 1992
• Promise to review after 10 years
• Review began in 2002 with Security issues

TDG Act vs TDG Regulations

• The Act sets out the field of application, the general prohibitions and the authority to make regulations
• The Act is relatively short (23 pages)
• The Regulations contain the detailed requirements
• The Regulations are bigger (746 pages)

TDG Act vs TDG Program

• The Program is shared among federal, provincial and territorial governments
• There are 14 legally distinct sets of rules
• Twenty federal departments and agencies participate
• The TDG Act makes use of requirements (e.g., Explosives Act, Nuclear Safety Act)

TDG Act – Title

• An Act to Promote Public Safety in the Transportation of Dangerous Goods
• Public safety means the protection of people's health and life, of property and of the environment.
• This is the objective of the TDG Act

Section 1 – Short Title
Section 2 - Definitions

• Transportation of Dangerous Goods Act, 1992
• The date was added to distinguish it from the earlier version of the Act.
• A definition by itself does not impose any requirement; one has to see how the word is used elsewhere in the Act.

Section 3 – Field of application

• This Act applies in relation to all matters within the legislative authority of Parliament, including dangerous goods outside Canada that are carried on a ship or aircraft registered in Canada.
• It also applies to government activities
• It allows exclusions by permits and regulations
• Three specific types of activities are not covered (they are covered in other acts)

Section 4 - Provinces

• Agreements with provincial governments with respect to the administration of the Act
• There are eleven agreements signed so far
• Agreements are on administration, not on jurisdiction; whatever legislation applies continues to apply, with or without an agreement.

Section 5 – General Prohibition
Section 6 – Misleading marks

• No person may transport dangerous goods without complying with the Regulations
• No person shall display a prescribed safety mark on a means of containment or transport, or at a facility, if the mark is misleading as to the presence of danger, the nature of any danger or compliance with any prescribed safety standard.

Section 7 - ERAP

• Emergency Response Assistance Plans
• For very dangerous goods
• Plan must be in place BEFORE offering for transport
• Plans must be inspected for approval
• Plans must be maintained

Section 8 – Standardized m.o.c.
Section 9 – Notices of Recall

• Cannot distribute a standardized means of containment unless it shows all the applicable safety marks
• If a defect is found, notices or recalls have to be issued by distributor
• Recall: 6 says one cannot display misleading marks
• Combination of 6, 8 and 9 should cover all cases for standardized m.o.c.

TDG Inspectors

• 10: Designation of inspector for the TDG Act (There are 342) However, there are thousands of inspectors for other legislation (e.g. provincial and territorial dangerous goods inspectors).
• 11: Seals used to show a m.o.c. was inspected
• 13: No obstruction to inspector's work
• 15, 16: Powers of inspectors

Non-compliance and accidents

• 17: Remedying non-compliance
       (detention a.k.a stop orders, non-entry)
• 18: Duty to report and respond
• 19: Intervention by inspector, directing.
• 20: Personal liability protected
• Taken together, these should cover cases where there is an immediate threat to public safety, caused by accidental release

After the emergency

• 21: Enquiries (where TSB doesn't)
• 22: Recovery of expenses
• 24: Protected information

For a better program

• 23: Requesting information on products held by CANUTEC for emergency
• 25: Technical Research
• 26: creation of TDG Advisory Council(s)

Regulations

• 27(1) The Governor in Council may make regulations generally for carrying out the purposes and provisions of this Act...
• 27(2) ... for the purpose of prescribing alternative ways of complying with this Act, may refer to any of the following documents as amended from time to time (IMDG, ICAO, 49CFR)
• 28: No person shall contravene or fail to comply with a provision of any regulation...
• 30: Publication of proposed regulations.

Section 31 - Permits

• Equivalent level of safety or emergency
• If the activity is in full compliance with TDG Regulations, no permit is needed.
• Applicant must demonstrate that the proposed method provides an equivalent level of safety.
• Emergency: danger to public safety

Miscellaneous

• 29: Minister may set fees for services, for permit applications and for filing certain documents
• 32: Protective directions (anti-permit)
• 12: Designation of persons to approve on behalf of Minister (ERAP, permits...)
• 14: Financial responsibility, being able to pay damages after an accident (insurance)

Penalties

• 33: Exposure to fines and imprisonment
• 34: Court orders, including prohibition, compensation, reparation, research.
• 35: 2-year limitation on summary procedure
• 36: Continuing offence (repeat)
• 37: Venue
• 38, 39:  Employee, officer of company
• 40: Due diligence defence

Evidence

• 41:  Official documents do not have to be “proved”, as long as copies have been given to the other party prior to the prosecution
• 42:  Safety marks are proofs;  for example, it you put dangerous goods labels on a box, then we are allowed to treat the box as if it contained dangerous goods (we do not need to take samples).

That's it

• There were other sections in the TDG Act of 1992;  they were “self-erasing”
• For example, section 47 repealed the old TDG Act.  Once that is done, then section 47 is not longer needed.

Date modified:

2009-10-28

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