1. Transportation of Dangerous Goods Heather C. Devine, Partner Morgan Jarvis, Associate

2. Today’s Topics Dangerous Goods Legislation Classification Shipping Document Use of Safety Marks, Labels, Signs, and Placards Containers Duty to Train Emergency Response Assistance Plan CANUTEC Offences and Penalties Contractual Provisions 2

3. Transport Canada estimates that: 70% of dangerous goods are transported by road; 24% by rail; 6% by marine; and Less than 1% by air. 3

4. DANGEROUS GOODS: CANADIAN LEGISLATION

5. at the Time? What Federal Legislation is in Place? Transportation of Dangerous Goods Act, 1992 (“TDGA”) Transportation of Dangerous Goods Regulations (“TDGRs”) Each province and territory has its own respective transportation of dangerous goods Act and has adopted the federal TDGRs in whole or in part through their own provincial statutes.

6. TDGAct Applies to all handling, offering for transport and transporting of dangerous goods by any means of transport, both inter and intra-provincially.  Harmonized across Canada

7. TDGAct Provides that everyone handling, offering for transport, or transporting dangerous goods meet the prescribed safety requirements under the Act and Regulations.

8. TDGRegulations Set out the manner in which goods are: Classified Marked Labeled

9. TDGRegulations Prescribes that anyone handling dangerous goods must have proper training and certification.

10. CLASSIFICATION

11. Classification of Dangerous Goods The consignor/shipper has the responsibility of ensuring that all dangerous goods have been properly classified before allowing the carrier to take possession of the goods for transport. 11

12. Nine Classes of Dangerous Goods Class 1: Explosives Class 2: Gases Class 3: Flammable Liquids Class 4: Flammable Solids Class 5: Oxidizing Substances and Organic Peroxides Class 6: Toxic and Infectious Substances Class 7: Radioactive Materials Class 8: Corrosives Class 9: Miscellaneous 12

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14. Packing Group Indicates the level of hazard within a classification: Packing Group I - very hazardous substances Packing Group II - hazardous substances Packing Group III - moderately hazardous substances 14

15. Dangerous Goods Originating in the U.S Can be transported under the classification requirements of Title 49 of the US Code of Federal Regulations unless: 1.The dangerous goods are forbid by TDGRs but not by 49 CFR. 2.The dangerous goods are regulated by TDGRs but not by 49 CFR. 3.The dangerous goods are transported under an exemption issued by 49 CFR. 4.The dangerous goods are given dangerous goods safety mark or packaging exceptions in 49 CFR that are not permitted by TDGRs. 15

16. SHIPPING DOCUMENT

17. The consignor/shipper is responsible for preparing a shipping document that includes the following information: I.The name and address of the consignor’s place of business; II.The date the shipping document was prepared or was first given to a carrier; III.The description of each of the dangerous goods: Dangerous goods shipping name; Primary class and subsidiary class; The UN number; If applicable, the packing group; IV.The quantity of dangerous goods and the unit of measure; and V.The “24-Hour Number” of the consignor or CANUTEC. 17

18. Dangerous Goods Originating in the U.S Shipping document prepared in accordance with Title 49 of the US Code of Federal Regulations but must also include: I.The name and address of the place of business of the consignor; II.The classification from the TDGRs or the UN Recommendations; and III.The emergency response assistance plan reference number and telephone number to have the plan activated, when required by the TDGRs. 18

19. USE OF SAFETY MARKS AND LABELS

20. Safety Marks A symbol, device, sign, label, placard, letter, word, number or abbreviation that indicates the presence or nature of danger.  Dangerous goods must be identified by safety marks when being transported.  Safety marks must not be misleading. 20

21. Responsibilities of Consignor/Carrier Consignor/Shipper: Ensure each package of dangerous goods is properly marked. Provide the safety marks to carrier. Carrier: Ensure safety marks remain displayed in transport. Displaying or removing the marks if requirements change during transportation. 21

22. CONTAINERS

23. TDGRs: Dangerous goods must be contained Anyone handling, transporting, or offering dangerous goods for transport must use containers in accordance with national safety standards. 23

24. General Rules for Containment: Select and use a standardized means of containment. Ensure goods do not exceed maximum quantity limit. Display certification safety mark. Carefully load and secure containers. 24

25. DUTY TO TRAIN HANDLERS

26. Employers are responsible for ensuring all employees are adequately trained: Must be able to demonstrate sufficient knowledge of aspects of the TDGRs that relate to their duties and the dangerous goods that they will be expected to handle, transport, or offer to transport. 26

27. Training Certificate Once requirements have been met, the employer must issue a training certificate to the employee containing the following information: Name & address of the employer’s place of business The employee’s name Date of certificate expiry (24 or 36 months after date of issuance) The aspects of handling / offering for transport / transport the employee has been trained in Signatures of both the employee and employer 27

28. Training Requirements: Anyone handling, transporting, or offering dangerous goods for transport must hold a valid training certificate. 28

29. Transportation from U.S. to Canada Valid training certificate: Driver of a Road Vehicle: Document issued indicating training in accordance with CFR sections 172.700 – 172.704 29

30. EMERGENCY RESPONSE ASSISTANCE PLANS

31. Emergency Response Assistance Plan (ERAP): Addresses what to do in the event of a transportation accident involving dangerous goods that: Present a potential hazardous risk to public safety. Are being transported in moderate OR large quantities.

32. ERAP: The shipper and/or manufacturer must prepare an ERAP and have it approved by Transport Canada. Once approved, Transport Canada will issue a reference number and activation telephone number. This must be displayed on shipping documents accompanying the dangerous goods. 32

33. ERAPs must address : Emergency Preparedness  Personnel Training  Response Exercises  Equipment Maintenance  Contact Lists  Resources  Roles and Responsibilities …and more

34. CANUTEC REGISTRATION SYSTEM 34

35. CANUTEC Registration System (“CRS”) A national advisory service that assists emergency response personnel in handling dangerous goods emergencies on a 24-hour basis. Operated by the Transportation of Dangerous Goods Directorate of Transport Canada.  1,000 emergency situations per year ; 25,000 telephone calls per year. 35

36. CANUTEC Registration System (“CRS”) Consignors/ Shippers are responsible for: Registering with CANUTEC. Placing CANUTEC’s 24-hour emergency telephone number on shipping documents for dangerous goods. CANUTEC must be contacted in the event of a dangerous goods incident. 36

37. ACCIDENT REPORTING REQUIREMENTS 37

38. Accident Reporting Immediate Reporting: Responsibility of the person in possession of the goods at the time of the accident. Must include the following (if known): Shipping name or UN number of the dangerous goods Quantity of dangerous goods The condition of the means of containment Location of accidental release Number of deaths and injuries 38

39. Accident Reporting 30 Day Follow-Up Report: Responsibility of the employer of person in possession of the goods at the time of the accident. 39

40. OFFENCES AND PENALTIES 40

41. Offences and Penalties for contravening TDGA and/or TDGRs 41 Summary conviction: fine of up to $50,000 for first offence and $100,000 for subsequent offences Indictable offence: up to 2 years imprisonment and no limit on fine amount

42. CONTRACTUAL PROVISIONS

43. A contract containing a “dangerous goods” provision should address the following: 43 The applicable legislation. The obligation to comply with the legislation. The definition/classification of dangerous goods. The apportionment of fees, costs, and expenses for carrying out compliance. The representations and warranties of the parties with respect to specific provisions of the applicable legislation. The assignment of liability and indemnification for non-compliance.

44. Thank You montréal  ottawa  toronto  hamilton  waterloo region  calgary   vancouver  beijing  moscow  london Heather Devine (905) 540-3289 heather.devine@gowlings.com