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| EMERGENCY DECLARED by public official | EMERGENCY NOT DECLARED by public official | NON- EMERGENCY e.g., tank car or truck repair (no threat of product release) |
| Immigration agreements exist to permit movement of personnel. | Immigration agreements exist to facilitate response. Pre-incident liaison with local officials strongly recommended. |
No immigration agreements in place. |
| Customs agreements exist to permit movement of goods. | Customs agreements exist to facilitate response. Pre-incident liaison with local officials strongly recommended. |
No customs agreements in place. |
| Training: Must comply with applicable Canadian regulations (TDG, WHMIS). | Training: Must comply with applicable Canadian regulations (TDG, WHMIS). | Training: Must comply with applicable Canadian regulations (TDG, WHMIS). |
| Liability: No exemption. | Liability: No exemption. | Liability:No exemption. |
Under customs and immigration regulations, manpower and equipment from the United States can be used to respond to an emergency in Canada. Standard customs and immigration regulations, however, can prevent the cross-border movement of personnel and equipment to perform work without special authorization. Local Border Services officials may even lack familiarity with emergency response provisions due to their infrequent use. For these reasons, it is important that emergency response plans outline the specific procedures required and encourage interaction with Canada Border Services Agency officials and their involvement in training and exercises before the need to respond.
Companies planning to cross the border as part of a response team should become familiar with the specific regulations concerning the type of response they plan to provide for all geographic areas that they could potentially be called to serve. In addition to the exemptions, which facilitate the response, there are regulatory requirements which must be considered related to such matters as notification and reporting, cross-border movement of equipment and materials and personnel, responder training and liability and insurance.
3.2 Notification and Reporting
If a chemical incident occurs, it is important to know which authorities to notify. Pursuant to the Transportation of Dangerous Goods Regulations, generally, the local authorities must be informed of incidents involving the shipment of products classified as "dangerous goods". Provincial legislation also requires that the incident be reported to appropriate authorities (Transport, Environment) of the province in which the incident occurs. This often applies to a larger class of goods than those regulated by the Transportation of Dangerous Goods Regulations.
For marine incidents involving dangerous goods, harmful substances, or marine pollutants, an additional report must be made as quickly as possible to a pollution prevention officer or steamship inspector, as defined by the Canada Shipping Act.
For dangerous goods incidents, in addition to the immediate reporting requirements, a report must be provided in writing to the Director General, Transport Dangerous Goods Directorate, by the employer of the person who had possession of the dangerous goods at the time of the incident. This report must be submitted within thirty days of an incident. Section 8.3 of the Transportation of Dangerous Goods Regulations describes the information that must be included in the report.
Information about reporting requirements for other harmful substances can be obtained from:
National Environmental Emergencies Centre (NEEC)
Environmental Emergencies Branch
Environment Canada
351 St. Joseph Blvd.
Gatineau, QC K1A 0H3
Tel.: (819) 997-3742
Fax: (819) 953-5361
E-mail : environmental.emergencies@ec.gc.ca
www.ec.gc.ca/ee-ue
Another publication, a Transport Canada publication entitled TP 9834, Guidelines for Reporting Incidents Involving Dangerous Goods, Harmful Substances and/or Marine Pollutants is available from Transport Canada's Marine Safety Publications website at: www.tc.gc.ca/MarineSafety/TP/menu.htm or from:
Marine Safety Directorate
Transport Canada
AMS
330 Sparks Street
Ottawa, ON K1A ON5
Canada
Tel.: (613) 991-3135
Fax: (613) 990-6191
E-mail: marinesafety@tc.gc.ca
Transport Canada's Canadian Transport Emergency Centre’s (CANUTEC) main role is to provide advice and assistance during emergencies. CANUTEC can also provide advice regarding reporting requirements.
In an emergency, call collect at (613) 996-6666 or, in Canada only, cellular *666 (24 hours). In a non-emergency situation, CANUTEC can be reached at:
Transport Canada – CANUTEC
Tower C, Place de Ville, 14th Floor
330 Sparks St., Office 1415
Ottawa, ON K1A ON5
Canada
Tel.: (613) 992-4624 (24 hour information line)
Fax: (613) 954-5101
www.tc.gc.ca/canutec
In relation to an environmental emergency or polluting incident, Environment Canada's National Environmental Emergencies Centre (NEEC) can be called collect at (819) 997-3742 (24 hours).
3.3 Cross-Border Movement of Response Equipment and Materials
Customs and excise regulations govern the movement of goods between Canada and the United States. Consequently, in addition to reporting requirements, customs and immigration officials at the ports of entry into Canada should be notified of any chemical incidents. The Customs and Immigration officials at the ports of entry should be provided with a contact person from a municipal, provincial or federal authority that can confirm that an emergency currently exists.
Ensuring that practical and clearly understood arrangements are in place will allow American response resources to engage in pollution responses in Canada with a minimum of delay. In relation to pollution response in Canada, the rules governing the use of American equipment and the use of American vessels are most significant.
3.3.1 Use of American Equipment for Emergency Response in Canada
To effect the movement of equipment into Canada, Memorandum D8-1-1, Goods For Emergency Use Remission Order, Appendix G, outlines the conditions under which goods for emergency use can be brought into the country without paying customs duties under the Customs Tariff or taxes under the Excise Tax Act. An "emergency" is defined in the Order as an "urgent and critical situation of a temporary nature caused by an actual or imminent identified situation that includes pollution, and results or may result in danger to property." Thus it is possible to import equipment to avert an imminent emergency. The Order requires that any goods so imported, and not consumed or destroyed during the emergency, be exported when no longer needed.
Under Section 2 of the Order, the term "goods" is not specifically defined. However, goods are considered items of commercial or non-commercial value. The term does not include response personnel.
At the port of entry where the goods must be reported, a simple blotter record describing the goods in general terms will be made, without a security deposit, on a Temporary Admission Permit (Canada Customs Form E29B). The form can be found at: http://www.cbsa-asfc.gc.ca/E/pbg/cf/e29b/README.html. It can be filled out on line but must be provided to the inspecting Customs officer in hard copy. Additional information on how to complete the form is available at the following Internet address: http://www.cbsa-asfc.gc.ca/E/pub/cm/d8-1-4/README.html. The issuance of this permit can be made at the time of importation or after the fact, depending on the circumstances. This record can be cancelled whenever an official or responsible person involved provides evidence that the goods were expended or destroyed in resolving the emergency or were exported from Canada.
The response contractor should stop at United States Customs during entry into Canada to get their equipment list registered with US Customs and do the same with Canada Customs on the way back. This should facilitate the entry of equipment into Canada and the return to the United States. US Customs has indicated that form 4455 will have to be completed (it should be completed ahead of time to expedite entry). The contractor’s equipment list can be appended to this form.
Where an emergency situation requires release of the goods at places where customs officers or Royal Canadian Mounted Police are not in attendance, a record kept by a responsible individual will be accepted for the purpose of completing the Temporary Admission Permit. This individual can be a representative of the provincial government or an individual with the responsibility of directing the emergency countermeasures.
To expedite such procedures and ensure that there are no undue impediments to the importation of equipment, responsible agencies must coordinate their actions with field customs officials. Telephone numbers for all border crossings are available from:
Transport Canada – CANUTEC
Tower C, Place de Ville, 14th Floor
330 Sparks St., Office 1415
Ottawa, ON K1A ON5
Canada
Tel.: (613) 992-4624 (24 hour information line)
Fax: (613) 954-5101
www.tc.gc.ca/canutec
3.3.2 Use of American Vessels for Emergency Response in Canada
With respect to assisting vessels in danger, the United States Wreckers Act (a Canadian Act) allows American vessels to salvage any property wrecked, without reference to the customs or coasting laws of Canada. American vessels may also aid and assist any vessels wrecked, disabled or in distress, in the waters contiguous to the United States, provided that the existing reciprocal privilege with respect to Canadian vessels in the United States remains in force. The United States Wreckers Act does not, however, apply to cargo released by the ship or to clean-up operations outside the ship.
Under paragraph 3(2)(e) of the Coasting Trade Act, foreign ships or non-duty paid ships can carry goods from one place in Canada to any other place in Canada, with the approval of a pollution prevention officer, provided they are involved in activities related to a marine pollution emergency or to a risk of such an emergency.
American vessels are permitted to conduct pollution response operations in Canadian waters contiguous to the United States. The American vessel may carry goods from one place in Canada to any other place in Canada provided that it is engaged, with the approval of a pollution prevention officer, in activities related to a marine pollution emergency, or to a risk of such an emergency.
3.4 Cross-Border Movement of Response Personnel
The rules governing whether or not an American can work in Canada are found in the Canadian federal Immigration and Refugee Protection Act and Regulations. Two sections of the U.S./Canada Free Trade Agreement also have implications for an American company's employees. Unless an emergency exists, there are significant restrictions.
Because of agreements between Canada and the United States, emergency response personnel from the United States can enter Canada without special documentation or permits. This is facilitated by paragraph 186(t) of the Immigration and Refugee Protection Regulations which provides that a foreign national may work in Canada without a work permit if they are providing emergency services, including medical services, for the protection or preservation of life or property.
Border authorities have recommended that they be notified by telephone that an emergency response team is crossing the border and its expected time of arrival. It is also recommended to have a provincial, municipal or federal authority involved with the emergency contact the border officials to confirm that an emergency situation exists. Entry into Canada will be facilitated if the response team can provide a signed letter from a Canadian authority confirming the nature of the emergency, identifying the names of the persons needing entry into Canada and providing a contact person that Immigration Canada can contact should they have any questions.
3.4.1 Possible Scenarios
(1) A US Citizen wants to enter Canada to fix a problem on a tank car or truck to allow continued shipment; however, the incident is not classified as an emergency:
Under Canada's Immigration and Refugee Protection Act, the US Citizen probably needs a work permit. The US Citizen would otherwise be denied access because Canadian mechanics or technicians could perform the work. However, if the work requires specialized skills, the employee may be able to enter pursuant to the Free Trade Agreement’s intra-corporate transfer rules.
(2) An American wants to enter Canada to respond to an emergency:
According to paragraph 186(t) of Canada's Immigration and Refugee Protection Regulations, American personnel can usually enter Canada without employment authorization if they are rendering emergency medical or other services for the preservation of life or property. Consequently, American response personnel can enter the country without a work permit.
3.4.2 Contacts
The following contacts can help readers obtain additional information about the relevant sections of the Immigration and Refugee Protection Act and Regulations:
Citizenship and Immigration Canada
Information call centers:
Toll-free: 1-888-242-2100
www.cic.gc.ca
3.5 Responder Training Requirements
In Canada any person who handles, offers for transport or transports dangerous goods must be adequately trained and hold a valid training certificate or perform those activities in the presence of and under the direct supervision of a person who is trained and who holds a valid training certificate. Part 6 of the Transportation of Dangerous Goods (TDG) Regulations contain the requirements as to what constitutes adequate training, who issues the training certificate, how long a training certificate is valid and when a training certificate must be produced for verification by an inspector. Responders coming from the United States to Canada who have been trained under sections 172.700 to 172.704 of the Title 49 of the Code of Federal Regulations of the United States and who work under the direct supervision of someone who is TDG trained should not have any problems complying with TDG requirements. Additional information respecting the TDG Regulations can be found at http://www.tc.gc.ca/tdg/menu.htm . Before entering the country, American teams should verify that they have proof of Transportation of Dangerous Goods (TDG) training unless they plan on working under the direct supervision of someone who is TDG trained (see also section 3.7 regarding Health and Safety related training requirements).
3.6 Liability and Insurance Issues
3.6.1 Presence at an Incident Site
In the United States, the shipper's presence at the site of a distribution incident is not legally required; in Canada the organization which has filed an emergency response assistance plan may be required to have a representative on site if required to effectively respond to an incident.
3.6.2 Liability
Liability for damage caused during a response effort generally arises from the conduct of the emergency response team at an incident site. At common law, responders can be found liable for negligence (from simple error to gross carelessness), nuisance (wrongful interference), or trespass (wrongful entry onto private property). Several statutes also impose liability on response teams, and are discussed below.
3.6.2.1 Responder Liability - Common Law
At common law, American teams responding to an incident can be held liable for any damage they cause through negligence, nuisance, or trespass. To prove negligence, the injured party must show that the responder engaged in substandard behavior. However, to prove nuisance or trespass, the plaintiff simply has to show that the responder caused the damage in question.
Organizations advising response teams of their liabilities can also be found liable of negligent misstatement if they fail to provide reasonable advice, or act as advisors outside of their areas of expertise. If found liable of negligent misstatement, recovery can be made for personal injury, property damage, or economic loss.
A limited immunity from these common law actions is available under section 678.1 of the Canada Shipping Act to persons responding to marine oil spills at the direction of the Minister or to an organization classified as a “response organization”.
3.6.2.2 Responder Liability - Statutory
The following federal and provincial laws are just some of the statutes in Canada that may impose liability on a responder:
Fisheries Act: This federal legislation imposes civil liability on those who deposit a "deleterious [harmful] substance" in waters frequented by fish, who have the "charge, management or control" of the substance, or who "cause or contribute to the causation" of the deposit in question. If found liable, defendants may have to pay clean-up costs, and any lost income incurred by fishermen.
Canadian Environmental Protection Act (CEPA): Part VI of CEPAdeals specifically with ocean dumping, defined as the deliberate disposal at sea of any substance. It is a criminal offense to carry out ocean dumping without a permit, and the offender can, upon conviction, be subject to a fine or imprisonment, and can also be obligated to repay the federal government for costs incurred in remedying or mitigating the damage. Part VIII of CEPA deals with environmental emergencies, and includes requirements for prevention, preparedness, response and recovery regarding emergencies involving hazardous materials. Regulations and guidelines for Part VIII are now being developed. Consult Environment Canada for current information.
Canada Shipping Act (CSA): Under the CSA, a "ship" includes an oil-bearing barge. The owner of a ship is liable for pollution damage, with certain limited exceptions. If no immunity is available under section 678.1 of the Act, the owner of a barge carrying captured oil can be held liable for cleanup costs and other damage.
Transportation of Dangerous Goods Act: This federal Act applies if "dangerous goods" are used and transported by an organization responding to an incident. If there is a discharge, emission or escape of a dangerous substance, the federal government may be able to recover the costs and expenses of cleanup against the persons responsible. The onus is on the person who transports the dangerous goods to establish that he or she took all reasonable measures to comply with the Act and Regulations.
In certain circumstances, the Transportation of Dangerous Goods Act can provide personal liability protection to persons directed to take certain remedial actions at the time of transportation of dangerous goods incidents. Therefore, emergency response teams, whether they are based in Canada or come from the United States to do a response on Canadian soil, may not be personally liable, either civilly or criminally in respect of any act or omission in the course of complying with an inspector’s direction or doing any reasonable thing incidental to it, unless it is shown that the act or omission was made in bad faith. Additional information regarding the TDG Act can be found at http://www.tc.gc.ca/tdg/menu.htm.
3.6.3 Reducing Liability
Limited immunity from liability is available to private responders under the Transport of Dangerous Goods Act and the Canada Shipping Act, and to Crown employees under the Crown Liability and Proceedings Act.
Outside of statutory immunity, there are steps that can be taken to minimize liability.
In relation to product spills:
Use every means available to immediately limit, contain and clean up the spill in a safe manner.
Do everything that may be required by law or any government agency to prevent, eliminate or ameliorate all adverse effects resulting from the spill.
Contact the owner, agent, proprietor, and/or occupier of any premises affected by the spill.
Immediately contact by telephone a responsible person in the organization where the product was loaded or the 24-hour emergency number shown on shipping documents, if these numbers are available.
Follow documented instructions for handling and reporting product spills.
Immediately report the incident to any authorities required by law to be notified
Document and maintain personal records of all events and conditions leading up to and causing the incident and any statements made by anyone involved with the incident (carrier responsibility)
In relation to insurance:
The carrier should report the incident to the owner of the vehicle and the owner or agent of product in transit as soon as possible.
The owner of the vehicle and the owner or agent of product in transit must report the incident to their insurance agents, brokers or adjusters immediately after the occurrence of the incident.
The carrier must be available to report and document details of the incident to the claims adjuster as indicated by the owner of the vehicle and the owner or agent of product in transit as specified by the owners or agents.
3.7 Occupational Health and Safety Legislation
Canada does not have federal legislation similar to 29 CFR §1910.120 (HAZWOPER), which regulates the type of training that emergency response personnel should have. Instead, Canadian requirements are regulated at both the provincial and federal levels.
The federal Canada Labour Code applies to organizations involved in international and inter-provincial transportation as well as most Crown Corporations and federal undertakings and businesses (e.g. banks, telephone, federal government, etc.). Most industries in Canada fall under provincial jurisdiction as do most first responders (fire, police, EMS, etc.). An accident site that is on federal land could have both federally regulated workers and workers who are regulated under provincial or territorial health and safety regulations. Jurisdictional issues can be complex. United States based contractors should follow the health and safety requirements that are most stringent where there is a conflict between jurisdictional requirements.
Questions regarding health and safety jurisdiction should be addressed to Human Resources and Skills Development Canada (HRSDC) Labour Program at 800-463-2493. American emergency response personnel should become familiar with all the different requirements, as these vary from province to province.
The Workplace Hazardous Materials Information System [WHMIS] is a set of regulations that apply to all workers in Canada whether they fall under federal, provincial or territorial jurisdiction. Unlike the American Hazard Communication Standard, WHMIS has its own unique set of symbols and labeling criteria. The information required for the WHMIS material safety data sheets is more extensive, and workers must receive training on what the labels and material safety data sheets mean as well as training on site specific hazards.
There are some similarities between Canadian and American safety regulations, especially in the areas of fall protection, trench shoring, and electrical isolation, as well as occupational hygiene, surveillance of exposure limits, respiratory protection programs, and hearing conservation programs.
For the most part, American firefighters and public-sector hazardous materials team members will be guided by National Fire Protection Association standard 471 Recommended Practice for Responding to Hazardous Materials Incidents and NFPA standard 472 Professional Competence of Responders to Hazardous Materials Incidents. These standards relate to the 29 CFR §1920.120 and the requirements outlined in 40 and 49 CFR. Although the NFPA standard is not mandated for Canadian workers, the standard (with minor modifications) is widely supported by the fire service and many qualified response teams.
Providing that the safety officers at the cleanup and countermeasures sites have knowledge of the applicable requirements and standards, trained workers from both countries should have no difficulty defining and working within the safety requirements.
An important aspect of cross-border response that is often overlooked is the barrier that may be caused by the different languages spoken in the country where the response takes place. In relation to North American, the different languages encountered could be English, French or Spanish.
It is important to take the language issue into account in planning for cross-border response by ensuring, for instance, that one or more of the response team members is fluent in more than one language or by arranging access to interpreters on short notice.
Although no specific security provisions pertaining to response from the United States into Canada have been identified at this time, the general security guidance provided in Section 3.7 of this guide should be reviewed.
4. RESPONDING FROM CANADA INTO THE UNITED STATES
Cross-Border Response Matrix
| EMERGENCY DECLARED by public official | EMERGENCY NOT DECLARED by public official | NON-EMERGENCY e.g., tank car or truck repair (no threat of product release) |
| Immigration agreements exist to permit movement of personnel. | Immigration agreements exist to facilitate response. Pre-incident liaison with local officials strongly recommended. |
No immigration agreements in place. |
| Customs agreements exist to permit movement of goods. | Customs agreements exist to facilitate response. Pre-incident liaison with local officials strongly recommended. |
No customs agreements in place. |
| Training: Must comply with all applicable U.S. and state regulations. | Training: Must comply with all applicable U.S. and state regulations. | Training: Must comply with all applicable U.S. and state regulations. |
| Liability: No exemption | Liability: No exemption | Liability: No exemption |
Under customs and immigration regulations, manpower and equipment from Canada can be used to respond to an emergency in the United States. Without special authorization, however, standard customs and immigration regulations can prevent the cross-border movement of personnel and equipment to perform work. Local Border Services officials may even lack familiarity with emergency response provisions due to their infrequent use. For these reasons, it is important that emergency response plans outline the specific procedures required, and encourage interaction with Border Services officials and their involvement in training and exercises before the need to respond.
Because potential problems and jurisdictional issues may be encountered during cross-border responses, mandatory response plans – such as those set out under the OPA 90 Regulations – prohibit reliance on foreign resources alone as part of a required response plan.
In addition to the exemptions, which can facilitate the response, there are regulatory requirements which must be considered related to such matters as notification and reporting, cross-border movement of equipment and materials and personnel, responder training and liability and insurance.
4.2 Notification and Reporting
In responding to an emergency incident, the proper regulatory agencies in the United States must be notified. Reporting is complex and normally must take place prior to the response.
The National Response Center is the sole federal point of contact for reporting oil and chemical spills, and provides information on reporting requirements and procedures.
Contact
National Response Center
c/o United States Coast Guard (CG-3RPF-2)
2100 2nd St. S.W. – Room 2111-B
Washington, D.C. 20593-0001
Tel.: (202) 267-2675
Toll free: 1-800-424-8802
Fax: (202) 267-1322
E-mail: lst-nrcinfo@comdt.uscg.mil
www.nrc.uscg.mil
In addition to American federal reporting requirements, the incident usually has to be reported to the State in which it occurs.
4.3 Cross Border Movement of Response Equipment and Materials
United States customs and excise regulations govern the movement of goods between Canada and the United States.
4.3.1 Admission of Emergency Response Equipment without Entry or Payment of Duty
§ 1322(b), subsections 2, 3 of Title 19, United States Code, provides that:
(b) The Secretary of the Treasury may provide by regulation or instruction for the admission, without entry and without the payment of duty or tax imposed upon or by reason of importation of:
…
(2) fire-fighting and rescue and relief equipment and supplies for emergent temporary use in connection with conflagrations [great and destructive fires];
(3) rescue and relief equipment and supplies for emergent temporary use in connection with floods and other disasters.
Pursuant to this section, U.S. customs regulations allow rescue and relief equipment into the country without entry or the payment of duty. The Customs Service has held that aircraft and vessels may, within the discretion of the appropriate district director, be entitled to exemption from entry and duties under 19 CFR § 10.107 if they are to be used on an "emergent temporary" basis for emergency spill cleanup. This holding may likewise be extended to other equipment necessary for an emergency spill cleanup.
In the past, rescue aircraft and vessels have been exempted from making a consumption entry, although they were still required to make the aircraft or vessel entry under Part 122, or Part 4, of the Customs Regulations. Consequently, any vessel arriving in a United States port for emergency spill response must make an immediate report of arrival and vessel entry, whether it arrives from a foreign port or another American port. Such vessels must clear customs when bound for a foreign port, or must have a permit to proceed from one American port to another.
The Jones Act (Section 27 of the Merchant Marine Act of 1920 – 46 USCA 883) prohibits the use of foreign vessels to carry merchandise between points in the United States.
Section 1117 of Pub. L. 104-324, Use of Foreign Registry Oil Spill Response Vessels (46 USC 12101) allows the use of foreign vessels for oil spill response on an emergency basis if no U.S. flagged response vessels are available. The foreign ships can be used for the purpose of recovering, transporting and loading and unloading in a US port oil discharged as a result of an oil spill.
For further details, consult the following legislative provisions:
4.4 Cross-Border Movement of Response Personnel
This section provides an overview of the U.S. Immigration and Naturalization Service rules that regulate when a Canadian company's employee can work in the United States. The intra-company transfer rules and the professional status provisions found in the U.S./Canada Free Trade Agreement are also discussed.
According to the United States Coast Guard, Immigration and Naturalization Service (INS) district directors can parole Canadian emergency cleanup workers responding in the United States for a maximum period of one week. To obtain this waiver:
(a) The INS district director with jurisdiction must receive certification in writing from a US government authority involved with the incident that a foreign company and its workers are required for the clean-up. It must be certified that no American company or workers are available to respond to the clean-up in a timely manner. Certification can occur after deployment.
(b) Industry must provide a completed Form I-94 for each foreign national (including Canadians), used in the emergency cleanup operations, as well as a complete list of all workers used, including name, nationality and date of birth. This form can be filed after deployment. Each individual must have appropriate identification.
(c) Upon request, industry must provide safe transportation to and from the American port of entry to the location of the emergency clean-up, to allow the Immigration and Naturalization Service to inspect operations.
(d) Foreign workers must check out through an INS office when departing the United States.
In addition to these provisions, company employees should be aware of two Immigration and Naturalization Service rules concerning:
4.4.1 Possible Scenarios
(1) A Canadian wants to enter the United States to fix a problem on a tank car or truck to allow continued shipment; however, the incident is not classified as an emergency:
The Canadian employee can usually cross the border if he or she qualifies as a professional under the Free Trade Agreement. Alternately, if the employee’s primary duties are managerial or executive, or if he or she possesses “specialized knowledge”, that employee may qualify under the INS intra-company provisions.
(2) A Canadian wants to enter the United States to respond to an emergency:
Under American law, any personnel, including response personnel, must be managers or executives, or possess specialized knowledge, to enter the country. If entering the United States in a managerial capacity, the company must demonstrate that the employee will be primarily directing the responding United States entity and will be supervising the work of other supervisory employees. This employee must also have discretionary authority over day-to-day operations.
4.4.2 Contact
The Immigration and Naturalization Service website lists its field offices by state and city, including a map and detailed contact information.
United States Citizenship and Immigration Services (USCIS)
National Customer Service Center: 1-800-375-5283 (US # only)
4.5 Responder Training Requirements
The United States has specific regulations detailing the training requirements that emergency response personnel must receive. All public and private sector personnel with a direct role in emergency management and response must be trained in the National Incident Management System (NIMS) and the Incident Command System (ICS) that meets current NIMS standards.
The agency that regulates worker protection is the Occupational Safety and Health Administration (OSHA). The United States Department of Transportation (DOT), Pipeline and Hazardous Materials Safety Administration (PHMSA) has the public responsibility for the safe and secure movement of hazardous materials by all transportation modes including pipeline. Individual States may have additional requirements.
Depending on the type of incident, different regulations apply. Here is a partial listing of relevant regulations:
National Incident Management System and Incident Command System resources:
www.fema.gov/emergency/nims/nims_alert.shtm
www.nimsonline.com
Occupational Safety and Health Administration (OSHA)
29 CFR § 1910.120 Hazardous Waste Operations and Emergency Response
U.S. Department of Transportation (DOT)
49 CFR § 172.600Applicability and General Requirements
4.5.1 Contacts
Hazardous materials and emergency response information is now available on line from the United States Department of Transportation at http://hazmat.dot.gov, enabling users to receive information on hazardous materials rules and regulations, training, enforcement, publications and reports.
Updated hazardous materials information is also provided by the Pipeline and Hazardous Materials Safety Administration (PHMSA). The PHMSA site, which replaces the former Hazardous Materials Information Exchange (HMIX), is http://hazmat.dot.gov
Occupational Safety and Health Administration (OSHA)
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tel.: (202) 693-2000
Fax: (202) 693-1659
www.osha.gov
National Response Center
c/o United States Coast Guard (G-OPF)
2100 2nd St. S.W. – Room 2611
Washington, D.C. 20593-0001
Tel.: (202) 267-2675
Toll free: 1-800-424-8802
Fax: (202) 267-1322
E-mail: lst-nrcinfo@comdt.uscg.mil
www.nrc.uscg.mil
4.6 Liability and Insurance Issues
4.6.1 Presence at an Incident Site
As a general rule, the shipper's presence at the site of a distribution incident is not legally required in the United States. When the shipper is present, it is normally due to company policy or a request from the authorities or carrier.
4.6.2 Liability
Liability for emergency responders generally arises from their conduct at an incident site, which can include the following:
Ordinary negligence – simple error or carelessness
Gross negligence – where the perpetrator should have known better
Willful misconduct – total disregard for proper procedures and the safety of others or intentional conduct harming others.
4.6.3 Reducing Liability
Emergency responders can avoid or at least minimize liability at an incident site by confining their activity to providing technical advice and assistance within the Incident Command System; by acting within a mutual assistance arrangement; by adhering to Good Samaritan laws; or a combination of these things. Each is further discussed below.
4.6.3.1 Incident Command System
In the United States, the Incident Command System places an individual in overall charge at an incident site. The identity of this person may vary from one place to another, and may be dictated by local laws or ordinances, but typically it will be the local fire chief, police chief, Coast Guard commander, or other public official.
Normally, the shipper's role at a distribution emergency incident is to provide technical advice and assistance to the incident commander. That can include hands-on assistance, but it should be done only with the concurrence of, and under the supervision of, the incident commander or the incident commander's designate.
4.6.2 Mutual Assistance
Mutual assistance arrangements, such as CHEMNETâ, CHLOREP, and others can limit a responder's liability by written agreement. Normally, the party receiving assistance agrees to hold the responder harmless (usually for negligence or gross negligence, but not willful misconduct) to the extent specified in the agreement.
4.6.3.3 Good Samaritan Laws
While there is no federal Good Samaritan law, these laws do exist in most states in the United States. They vary widely in type and extent of protection and are subject to change. Many apply only when a responder's assistance is specifically requested by a particular state official. If reliance is placed on any of these laws for liability protection, it would be wise to understand their requirements and limitations before committing a response team.
4.6.3.4 Insurance
A chemical company's existing liability coverage may protect it in the event of a cross-border response, however each company would be well advised to check with its present insurance carrier on limitations or exclusions in its coverage.
4.7 Occupational Health and Safety Regulations
The Occupational Safety and Health Administration (OSHA) maintains that foreign workers are required to obey American rules when working in the United States. OSHA also advises that there is no agreement with Human Resources Development Canada to honor the other country’s respective regulations. While American and Canadian worker safety rules are basically similar, there has been no formal study or comparison completed to highlight where the differences exist.
An important aspect of cross -border response that is often overlooked is the barrier that may be caused by the different languages spoken in the country where the response takes place. In relation to North American, the different languages encountered could be English, French or Spanish.
It is important to take the language issue into account in planning for cross-border response by ensuring, for instance, that one or more of the response team members is fluent in more than one language or by arranging access to interpreters on short notice.
Although no specific security provisions pertaining to response from Canada into the United States have been identified at this time, the general security guidance provided in Section 3.7 of this guide should be reviewed.
To alleviate some of the problems associated with cross-border response, use of industry mutual aid response organizations should be considered in developing cross-border response plans.
To receive response through these organizations, companies may be required to join industry mutual aid programs such as the American Chemistry Council's CHEMNET® program. For information about these programs, contact the associations.
A number of chemical specific or industry specific mutual aid emergency response plans have been developed by members of the oil, chemical and other industries. Some examples are plans established by the LPG Emergency Response Corporation for liquefied petroleum gases and by members of the chlorine industry for chlorine.
For information on mutual aid emergency organizations, contact:
CHEMTREC®
1300 Wilson Blvd.
Arlington, VA 22209
Tel.: (800) 262-8200 Fax: (703) 741-6037
www.chemtrec.org
CANUTEC
Transport Canada
Tower C, Place de Ville, 14th Floor, Office 1415
330 Sparks St.
Ottawa, ON K1A 0N5
Canada
Tel.: (613) 992-4624 (24 hour information line)
Fax: (613) 954-5101
www.tc.gc.ca/canutec
6. EMERGENCY RESPONSE CONTRACTORS
Contract responders can provide valuable assistance in responding to a hazardous substance incident provided they are properly trained and equipped. If resident in the country where the incident occurred, they can also alleviate some of the problems associated with cross-border response.
A list of contractors can be found on the Canadian Chemical Producers' Association (CCPA) website. This guide provides information on Canadian emergency response contractors and general guidance on selection of emergency response contractors.
The guide is available free of charge from the Association or its website:
Canadian Chemical Producers’ Association
350 Sparks Street, Suite 805
Ottawa, Ontario K1R 7S8
Tel.: (613) 237-6215
Fax: (613) 237-4061
http://www.ccpa.ca
In the United States, the American Chemistry Council maintains a mutual aid network called CHEMNETâ. For details, contact:
American Chemistry Council
1300 Wilson Blvd.
Arlington, VA 22209
Tel.: (703) 741-5000
Fax: (703) 741-6000
www.americanchemistry.com
Emergency response contractors are subject to the same cross-border restrictions as private companies, so care must be taken to select a contractor that is knowledgeable about the implications of cross-border response. Not all contractors can respond to cross-border incidents.
The Joint United States of America / United Mexican States Contingency Plan For Accidental Releases of Hazardous Substances Along The Border provides a framework for cooperation between Mexico and the United States when responding to a polluting incident that poses a significant threat to both parties or that affects one party to such an extent as to justify warning the other party or asking for assistance.
For additional information contact:
Federal Emergency Management Agency (FEMA)
500 C St. S.W.
Washington, D.C. 20472
Tel.: (202) 566-1600
Fax: (202) 646-4544
www.fema.gov
Chemical Emergency Preparedness and Prevention Office (CEPPO)
Environmental Protection Agency (EPA)
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
Tel.: (202) 564-8600
Fax: (202) 564-8222
www.epa.gov/ceppo/
8. EMERGENCY RESPONSE GUIDEBOOK
To facilitate improved response, Transport Canada, the U.S. Department of Transportation and the Secretariat of Communications and Transportation of Mexico have jointly developed the Emergency Response Guidebook.
For more information, contact:
CANUTEC
Transport Canada
Tower C, Place de Ville, 14th Floor,
Office 1415
330 Sparks St.
Ottawa, ON K1A 0N5
Tel.: (613) 992-4624 (24 hour information line)
Fax: (613) 954-5101
www.tc.gc.ca/canutec
www.tc.gc.ca/canutec/en/guide/guide.htm
Pipeline & Hazardous Materials Safety Administration
United States Department of Transportation (DOT)
400 7Th. St. S.W.
Washington, D.C 20590
Tel.: (202) 366-4900
Fax: (202) 366-7342
hazmat.dot.gov/pubs/erg/guidebook.htm
The Cross-Border Emergency Response Guide (file size 824 KB) is available in Portable Document Format which will download in approximately 2 minutes on a 56 Kbps connection and may be viewed using version 3.0 or higher of the Adobe® Acrobat Reader. This reader may be downloaded free of charge by visiting the Adobe® web site
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