SECTION 19

Intervention

19.(1) An inspector may take any measure referred to in subsection (2) where the inspector believes on reasonable grounds that it is necessary to prevent an imminent accidental release of dangerous goods from a means of containment being used to handle or transport the dangerous goods, or to reduce any danger to public safety resulting from the accidental release.

(2) The inspector may

(a) remove or direct a person described in subsection (3) to remove the dangerous goods or means of containment to an appropriate place;

(b) direct a person described in subsection (3) to do anything else to prevent the release or reduce any resulting danger, or direct the person to refrain from doing anything that may impede its prevention or the reduction of danger; or

(c) take any other measure described in Section 15.

(3) A direction may be issued to

(a) any person who owns, imports or has the charge, management or control of the dangerous goods or means of containment when the release occurs or becomes imminent, or at any time afterward;

(b) any person who is responding to the occurrence or imminence of the release in accordance with an emergency response assistance plan approved under Section 7; or

(c) any person who causes or contributes to the occurrence or imminence of the release.

BEHIND THE WORDS

Three sections which should be read together are Sections 17, 18 and 19. Section 17 provides for immediate action that can occur to bring something into a safe state, i.e., correct non-compliance. Section 18 requires immediate action should there be an actual or imminent accidental release. Section 19 provides for specific immediate action to occur under direction when there has been or there is imminent an accidental release.

Subsections 19(1) and (2) are essentially those that were contained in the TDG Act of 1980 with the added provision that intervention may occur when an accidental release is imminent. In addition, actions which can be prohibited or required are now restricted to preventing an imminent accidental release of dangerous goods or reducing any danger resulting from an accidental release of dangerous goods. Paragraph 27(1)(t) provides for regulations respecting notification, effect, duration and appeal.

The identification in 19(3) of the persons to whom a direction may be issued clarifies that no person not connected with the situation, product or means of containment can be directed to conduct emergency response.

Subsection 19(3)(b) was added for two reasons. The first was to encourage industry cooperation. Canadian industry has developed response plans for actual or imminent accidental releases of dangerous goods. Often these plans provide for mutual help such that a consignor from one part of the country may call upon a consignor in a different location to conduct the actual emergency response. As substitute teams cannot be "directed" to respond, the liability protection provided in Section 20 cannot apply in the absence of subsection 19(3)(b). The second reason for 19(3)(b) was to allow an inspector to require changes in the implementation of an ERAP if these are appropriate in the circumstances.

Generally speaking, action that can be directed under subsection 19(1) is to prevent a leak, stop or slow down a leak or neutralize the effect of a released product. It is observed that once the situation is stabilized further directions, such as offloading the product from a damaged means of containment to an approved means of containment, could occur under Section 19 if a new release was considered to be imminent or could be required or permitted under Section 17 if, for example, the damaged container is no longer in compliance.

Paragraph (a) of subsection 19(2) includes the repositioning of leaking highway tank trucks.

Paragraph (b) of subsection 19(2) allows an inspector to issue a direction in an emergency directly threatening public safety. Again, the objective is to prevent a leak, stop a leak or neutralize any released product. Directions under this paragraph should not extend beyond these boundaries. Note that many officials normally involved in emergency response such as provincial officials, police or fire fighters are not included in the group of persons to whom a direction can be issued under subsection 19(3).

Paragraph (a) of subsection 19(3) ensures that at all times during an emergency there is someone subject to direction.

Paragraph (b) of subsection 19(3) is clear. However, to ensure that a person does fall into this category he/she must either have declared that he/she is involved in implementing an approved emergency response assistance plan or there must be evidence to show this.

Paragraph (c) is, to some extent, open-ended. However, its application should be infrequent and when invoked its application should be clearly appropriate.

Reference should be made to the discussion on Section 22 if there is any consideration of emergency contracting.

RELATED SECTIONS

Subsection 13(2) - Requires compliance with directions

Section 20 - Liability protection for persons complying with a direction

Section 22 - Emergency contracting, government may recover costs it incurs in removing non-compliance

Section 33 - Establishes offences

COURT DECISIONS OF INTEREST

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