In 1992, the Transportation of Dangerous Goods Act (the “Act”) came into effect to promote public safety during the transportation of dangerous goods by all modes of transport in Canada. This federal legislation provides Transport Canada with the authority to develop and enforce requirements and restrictions to prevent incidents during transportation of dangerous goods. The Transport Dangerous Goods Directorate (the “Directorate”) monitors compliance with the Act and its Regulations by carrying out investigations and applying penalties in the event of non-compliance.
Several significant amendments to the Act came into force on June 16, 2009, the majority of which fall broadly into the areas of transportation safety and security. The updated legislation allows the Directorate to develop more stringent policies and regulations, enables a prevention and response security program, and expands Transport Canada’s response capability in the event of a security incident involving dangerous goods. The purpose of this article is to review some of the more important legislative changes and their potential implications for businesses.
- The new legislation contains a general prohibition against persons importing, offering for transport, handling or transporting dangerous goods unless, among other things, the person complies with the safety requirements and security requirements prescribed by regulation.
The definition of “safety requirements” now includes a requirement that must be met not only by persons directly involved in transporting dangerous goods, but also by persons engaged in manufacturing, repairing, testing or equipping a means of containment used in transportation. Therefore, organizations that engage in these peripheral operations must be cognizant of the safety requirements outlined in the regulations and ensure compliance with these requirements.
Moreover, the new legislation prescribes “security requirements” for persons engaged in importing, offering for transport, handling or transporting dangerous goods. A transportation security clearance (“TSC”) must be granted before these operations are performed with respect to goods in a quantity or concentration that is specified by regulation. As such, organizations must have sufficient familiarity with the regulations to recognize when a TSC must be requested.
Further, the Act has also increased the scope of organizations to which it applies in redefining “importers”. Now, any Canadian entity named in a shipping record accompanying dangerous goods or the means of containment as the person to whom they will be delivered is deemed to be an importer and is subject to this legislation.
- The updated legislation implements a more rigorous Emergency Response Assistance Plan (“ERAP”) and adds the requirement for a security plan and training. An approved ERAP is required to import, offer for transport, handle or transport dangerous goods in a quantity or concentration that is specified by regulation. The Directorate can direct that any organization’s ERAP be implemented in response to an actual or anticipated release of dangerous goods, even if that organization is not responsible for the release. Therefore, organizations must ensure that their ERAP(s) are up to date and can be effectively implemented at all times.
Operations that require an ERAP must also have a security plan, as well as security training in accordance with the regulations. A security plan must contain measures to prevent the dangerous goods from being stolen or otherwise unlawfully interfered with in the course of transportation. Moreover, the Act requires that these operations must take positive steps to seek out and obtain the requisite security training before it imports, transports, handles dangerous goods or offers to do so.
- Several amendments facilitate Transport Canada’s ability to monitor compliance with the legislation. The updated Act reaffirms that Transport Canada inspectors are able to inspect anywhere dangerous goods containers are being manufactured, repaired or tested. However, the Act now goes further to set out the extensive powers of the inspector in the course of carrying out an inspection. It also provides that an inspector may direct any number of persons to respond to an actual or anticipated release, even if they are not responsible for the release and do not have control of the dangerous goods. For example, if dangerous goods are spilled, an entity required to have an ERAP may be obligated to respond even though they were never involved in the actual transport of the goods.
Organizations subject to this Act must have an intimate knowledge of their rights and obligations in the course of an inspection. While inspectors have been granted wide powers in carrying out their duties, they are not immune from challenges for overstepping their authority. As such, the inspection provisions should be carefully reviewed and well understood by all involved in the transportation of dangerous goods.
Overall, the new legislation enables Transport Canada to impose more rigorous safety and security requirements on persons responsible for dangerous goods. The amendments reflect Transport Canada’s mandate for prevention of incidents and strict enforcement when violations of the Act occur. If organizations in the transportation industry do not adapt quickly and effectively, they may be exposed to prosecution.
It is therefore critical for organizations to educate themselves about the updated legislation and respond immediately. Industry players may be required to make changes to their operations, obtain further training and take other steps to render themselves compliant with these heightened standards. In this regard, organizations are advised to review the updated Act and associated regulations carefully and keep a close eye on new and updated regulations in the coming months. If organizations are unsure as to how to implement changes to meet the new legislation, they should seek the advice of counsel.
NOTE: This article discusses federal legislation, but provincial laws and regulations also apply (for example see Alberta’s Dangerous Goods Transportation Handling Act, RSA 200, c. D-4). Compliance with the federal legislation will not ensure compliance with provincial requirements.