SECTION 31

Permits (Equivalency or Emergency)

31.(1) The Minister or a person designated for the purposes of this subsection may issue a permit authorizing any activity to be carried on in a manner that does not comply with this Act if the Minister or designated person is satisfied that the manner in which the authorized activity will be conducted provides a level of safety at least equivalent to that provided by compliance with this Act.

(2) The Minister or a person designated for the purposes of this subsection may issue a permit authorizing any activity to be carried on in a manner that does not comply with this Act if the Minister or designated person is satisfied that the authorized activity is necessary to deal with an emergency in which there is danger to public safety.

(3) A permit issued under subsection (2) is not a statutory instrument for the purposes of the Statutory Instruments Act and may be issued orally, but must be reissued in writing as soon as practicable and the writing is conclusive of its content.

(4) A permit may include terms and conditions governing the authorized activity and non-compliance with any of the terms or conditions invalidates the permit.

(5) A permit may authorize the activity in terms of the persons who may carry on the activity and the goods or means of containment that it may involve.

(6) The Minister or a person designated for the purposes of subsection (1) may revoke a permit issued under that subsection where the Minister or designated person is no longer satisfied of the matter described in that subsection or the regulations have been amended and address the activity authorized by the permit.

(7) The Minister or a person designated for the purposes of subsection (2) may revoke a permit issued under that subsection where the Minister or designated person is no longer satisfied of the matter described in that subsection.

BEHIND THE WORDS

Subsection 31(l) refers to permits of an equivalent level of safety. Unfortunately the word "permit" evokes the wrong characterization of what is actually happening. A better phrase is "equivalency permit". It is observed that the permit is not a permission which is necessary to allow industry to operate but rather it is a document that allows industry to operate in a manner different from that required under the law.

Applications for equivalency permits may involve considerable research on the part of the government. Currently the average turnaround time for such an equivalency permit is 90 days.

The words "level of safety at least equivalent to" were deliberately chosen and are distinct from "level of safety equal to or better than". The next four paragraphs elaborate this point. They can be skipped over without any loss of continuity.

If we know that for every 100 times we perform a particular task there is one accident, we describe the probability of an accident as being 1/100 or 0.1. If the probability of an accident is much lower, for example if we can expect one accident for every 10,000 occasions, then the probability of an accident is 1/10,000 or 10^-4. When the probability of an accident is low enough one describes the situation as being safe. For example, most countries accept a probability of 10^-6 or lower as safe and needing no further study. This allows for discussing safety in terms of the number of failures permitted and may, for example, lead to statements such as:

"If the probability of a specific means of containment breaking open in a routine fall during transport (e.g. off the tail end of a truck) is 10^-4 or higher it is unsafe and should not be used.

If the probability is between 10^-4 and 10^-6 it should undergo examination and possibly not be used.

If the probability is 10^-6 or lower it is safe and can be used."

Using the preceding "language", a proposed event A provides an equivalent level of safety to event B if the probability of failure with event A is no more than that of event B plus 10^-6. Depending on circumstances, this increase could be as much as 10^-4 and still be acceptable.

Presented in a less formal fashion, if in a particular circumstance the absence of a specific requirement changes the probability of failure by a very small number, the two situations are equivalent. Thus, if they are "more or less equal", they are equivalent.

Also acceptable under the concept of equivalent level of safety is to raise the probability of a particular sub-event if there is a corresponding decrease in other sub-events.

Subsection 31(2) allows for the issuance of emergency permits. In this instance there is no obligation expressly stated in the Act to ensure that the issuance of the emergency permit will, taking all factors into account, result in reduced risk to public safety. However, this must be borne in mind when issuing emergency permits. Generally, emergency permits relate to allowing an increase in risk for a specific event knowing that overall the total risk is lowered. It is expected that emergency permits will be issued rarely.

An emergency permit can be issued to respond to an emergency not involved in transportation.

Subsection 31(3) provides that an emergency permit may be issued orally, need not be processed as a Statutory Instrument and must be re-issued in writing as soon as practicable.

Subsection 31(4) provides that an equivalency or emergency permit need not simply exempt someone from certain sections of the Act or regulations but, in fact may establish other conditions which must be followed. Further, non-compliance with any of the terms or conditions invalidates the permit and a continuation of the activity may be an offence against the TDG Act, 1992.

Subsection 31(5) provides that in some circumstances it is reasonable for the "effect" of the permit to "travel" with specific dangerous goods or means of containment. For example, an equivalency permit for a consignor to use an alternate means of containment must clearly apply to the means of containment. It is not reasonable for the use of this alternate means of containment to become an offence simply because one of the distributors did not also apply for the same equivalency permit. In general, attempts will be made to keep equivalency or emergency permits restrictive and their applicability narrow to the extent possible

Subsection 31(6) recognizes that over time many equivalency permits will stimulate changes to the regulations which in turn will obviate the need for the equivalency permits. Consequently equivalency permits could be revoked should the facts of the situation or the regulations change.

Subsection 31(7) provides for the revocation of an emergency permit.

Paragraph 27(1)(s) provides for establishing regulations relating to the application, refusal, issuance, revocation and appeal of either type of permit.

RELATED SECTIONS

Paragraph 27(l)(s) - To establish regulations

Section 29 - Fees for filing an application for an equivalency permit

COURT DECISIONS OF INTEREST

"Please refer to the disclaimer on page 0-1"

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