New Law: Complying with New TDGA Safety & Security Requirements

If your company is involved in any aspect of transporting dangerous goods within or to and from Canada, you must comply with a federal law called the Transportation of Dangerous Goods Act (TDGA). A number of important changes to the TDGA recently took effect that impose new safety and security requirements. And even though the provinces and territories have requirements of their own covering the transportation of dangerous goods within their borders, provincial and territorial laws typically either adopt or parallel the federal requirements. So the changes to the TDGA will have an impact on companies across Canada regardless of where they’re located or conduct business. This article will explain what you, as a safety coordinator, need to know about the changes to the TDGA to evaluate their impact on your company and its operations. OVERVIEW OF THE CHANGES The changes to the TDGA are embodied in Bill C-9, which took effect on June 16, 2009. The government plans to adopt new regulations to implement these changes. (We’ll let you know what the regulations require once they’re adopted.) The changes primarily fall into two categories: safety and security. Let’s look at each category individually. New Safety Requirements The most important changes to the TDGA with respect to safety are those that cover: Reporting duties. The duty to report an accidental release of dangerous goods has been changed to require the reporting of an actual or anticipated release if the release endangers or could endanger public safety. Under the previous law, the duty was to report actual and imminent releases in excess of prescribed amounts or concentrations. ERAP program. The amendments revise the requirements for emergency response assistance plans (ERAPs). Sec. 7(1) now bars a person from importing, offering for transport, handling or transporting dangerous goods in a quantity or concentration that’s specified by regulation (or that’s within a specified range of quantities or concentrations) unless that person has an ERAP that’s approved before:

• Importing the dangerous goods;
• Offering the dangerous goods for transport; or
• Handling or transporting the dangerous goods, where no one else is required to have an ERAP with respect to the handling or transporting of those goods.

The ERAP must outline what the person will do in response to an actual or anticipated release of a dangerous good that endangers or could endanger public safety. Sec. 7(3) spells out when the federal Minister of Transport (“Minister”) may approve an ERAP. And Sec. 7(5) adds new circumstances in which the Minister may revoke an ERAP, including when a direction made with respect to the ERAP hasn’t been complied with and when the Minister believes that:

• An ERAP that’s gotten interim approval can’t be implemented or will be ineffective in responding to a release;
• An approved ERAP can no longer be implemented or will no longer be effective in responding to a release;
• Reasonably requested changes to the ERAP are needed to make it effective in responding to a release and those changes haven’t been made within a reasonable time or have been refused; and
• There has been a release of dangerous goods to which the ERAP applies (or such a release has been anticipated) and that ERAP wasn’t used to respond to the actual or anticipated release.

Lastly, Sec. 7.1 now states that the Minister may, if necessary for the protection of public safety, direct or authorize a person with an approved ERAP to implement that plan. However, the Minister must compensate any person authorized to implement an ERAP for the expenses it incurs as a result of implementation. Insider Says: In a future issue, we’ll show you how to prepare, secure approval for and implement an ERAP under the TDGA. New Security Requirements The key new security requirements apply to the following areas: Security plans and training. One of the biggest changes to the TDGA is the addition of a section on security plans (Sec. 7.3). It says that no person shall import, offer for transport, handle or transport dangerous goods in a quantity or concentration specified by regulation (or within a range of quantities or concentrations specified by regulation) before that person has:

• Undergone security training in accordance with the regulations;
• Developed a security plan that meets the requirements; and
• Implemented that plan in accordance with the regulations.

The security plan must set out measures to prevent dangerous goods from being lost, stolen or otherwise unlawfully interfered with in the course of being imported, offered for transport, handled or transported. If such goods are stolen or lost, you’re now required to report their loss or theft. Security clearances. Another new section, Sec. 5.2, bars persons from importing, offering for transport, handling or transporting dangerous goods in a prescribed quantity or concentration (or within a prescribed range of quantities or concentrations) without a transportation security clearance. The Minister has the power to grant or refuse to grant such clearance and suspend or revoke a clearance after it has been granted. Use of security measures and interim orders. The TDGA now spells out the Minister’s authority to make measures and issue interim orders to ensure the security of dangerous goods. For example, under Sec. 27.2, the Minister may make security measures respecting the security of the importing, offering for transport, handling or transporting of dangerous goods only if:

• A regulation could be made in relation to that matter; and
• The publication of such a regulation would compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or endanger public safety.

In addition, the Minister may issue requirements in the form of an interim order (rather than a regulation) if he believes that immediate action is required to deal with an immediate threat to the security of the importing, offering for transport, handling or transporting of dangerous goods or to public safety. Security regulations. One of the changes to the TDGA authorizes the Governor in Council to make regulations on matters concerning the security of dangerous goods, including:

• Security clearance applications, suspensions and revocations;
• Security training, including its content and implementation;
• Security requirements for equipment, systems and processes;
• Reporting of lost or stolen dangerous goods; and
• Tracking of dangerous goods during transport.

HOW TO COMPLY To ensure that your company complies with the updated TDGA, you should take the following three steps: Step #1: Assess Impact of Changes First, you should assess the impact of the changes to the TDGA’s safety and security requirements on your company’s operations. We’ve given you an overview of these changes that you can use for that assessment. If you want more technical details about any of these changes, click here. Step #2: Revise Policies to Reflect Updates If your assessment reveals that company policies and procedures don’t comply with the new TDGA requirements, you’ll need to revise those policies and procedures to bring them into compliance. For example, if your reporting policies don’t already do so, you’ll need to change them to include reporting the loss or theft of any dangerous goods. If your company was previously required to have an ERAP, you’ll also need to ensure that the current ERAP complies with the new requirements. And you should determine if you’ll need to develop and implement a security plan and provide security training for workers. Step #3: Train Workers on New Policies Once you’ve revised the company’s policies and procedures to comply with the new TDGA requirements, it’s critical to train workers on these new policies. Every worker whose job is affected by the new requirements should be retrained. If you revise the company’s policies but fail to retrain workers, they’ll continue doing things the way they always have. And if the old policies don’t comply with the new TDGA requirements, failing to change operations and training could cause your company to get hit with a violation. Conclusion The previous TDGA requirements were mainly aimed at the threat of accidental spills or releases of hazardous substances. The newly added safety and security requirements are primarily designed to address a different kind of threat: the danger that criminals and terrorists will deliberately target such goods during transport. Because the TDGA covers so many companies in Canada, it’s essential that you understand the changes and ensure that your company complies with them.

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Enforcement Changes to TDGA

In addition to the new safety and security requirements, other changes to the enforcement sections of the TDGA have taken effect:

Inspectors’ powers. Inspectors may now:

• Inspect any place where a means of containment is being manufactured, repaired or tested;
• Open a means of containment for inspection or to take a sample, as long as the inspector provides the person in control of the item with a certificate proving that the item was opened for this purpose; and
• Remove any means of containment to an appropriate location under designated circumstances.

In addition, when inspectors or “qualified persons” as defined in the TDGA are exercising their powers under the Act, individuals may not:

• Fail to comply with any reasonable request of the inspector or qualified person;
• Knowingly make any false or misleading oral or written statement to the inspector or qualified person;
• Remove, alter or interfere in any way with anything detained or removed by or under the direction of the inspector (except with the inspector’s permission); or
• Otherwise obstruct or hinder the inspector or qualified person.

Offences and penalties. It’s now an offence to violate the TDGA, the regulations, a direction issued under the TDGA, a security measure or an interim order. And summary conviction proceedings may now be initiated within five—not two—years of the day on which the subject matter of the proceedings arose. Lastly, Sec. 39 on officer and director liability has been expanded to impose liability on a representative who plays an important role in the establishment of the organization’s policies or is responsible for managing an important aspect of the organization’s activities. Use of shipping records. In any prosecution for an offence under the TDGA, evidence that a means of containment or transport bore a dangerous goods mark (or another mark that is likely to be mistaken for a dangerous goods mark) or was accompanied by a shipping record is now, in the absence of evidence to the contrary, proof of the presence and identification of dangerous goods indicated by the dangerous goods mark or other mark or the shipping record.

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