Major Hazard Control in Canada: a Change in the Regulatory Landscape
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1 Bhopal and its Effects on the Canadian Regulatory Framework
Jean-Paul Lacoursiere, P.E. Chemical Engineering Department, Engineering Faculty University of Sherbrooke 35, ave Lemoyne Repentigny (Quebec) Canada J6A 3L4 Tel.: 450-581-2315 Fax: 450-581-4539 Email: [email protected] ABSTRACT
Instead of legislating after the Bhopal accident, Canada choose to innovate by adopting a consultative approach. In 1987, Environment Canada set up the Major Industrial Accident Council of Canada (MIACC), a non profit organization financed by the federal and provincial governments and industry.
MIACC was a process rather than a structure. Governments, industries, responders, trade unions, NGOs, etc. have shared their expertise. It has worked as a partnership for the development of standards, guidance documents, etc. in prevention, preparedness, response and recovery.
MIACC ceased to exist in 1999. Although, MIACC disappearance is unfortunate, it is not dramatic. A culture of partnership, of working together towards common objectives, is now well in place and influences the development of regulations.
Natural disasters and the 911 terrorist attack on New York triggered the publication of regulations.
The legislative process started in 2001 with the Province of Quebec adopting a new Civil Protection Act for the protection of persons and property against disasters.
2003 saw major developments in the regulation of emergencies - changes that are likely to have significant influences on how companies operate in Canada. Surprisingly, however, these changes have received little attention in the media, and many companies may not be aware of their implications.
This paper will review these developments, and will examine what has already taken place. Topics include:
The federal regulation of environmental emergencies under the Canadian Environmental Protection Act;
Extension of the Criminal Code of Canada to allow criminal charges and possibly heavy penalties for senior officials and corporations, including an explicit legal duty to protect workers from harm;
Quebec Civil Protection Act designed to identify and manage risks;
Ontario ‘s stepwise regulation of municipal emergency preparedness with the intended goal of NFPA 1600 compliance by 2007, and the implications for the process industries;
Potential regulation at the municipal level.
KEY WORDS
Canada; Regulatory Framework; Major Hazards 2 1 INTRODUCTION
After the Bhopal accident, under the leadership of Environment Canada, a group of experts from governments, industry, labour and Non Governmental Organisations (NGO) met to evaluate the Canadian situation with regards to major accidents and make recommendations to authorities. A report titled “Bhopal Aftermath Review: An Assessment of the Canadian Situation” (ref. 1) was published with 21 recommendations. The recommendations are listed in Appendix 1. They have served as a roadmap for the control of hazardous substances.
Instead of legislating after the Bhopal accident, Canada choose to innovate by adopting a consultative approach. In 1987, Environment Canada set up the Major Industrial Accident Council of Canada (MIACC), a non profit organization financed by the federal and provincial governments and industry. MIACC was viewed by the stakeholders as an alternative to a legislative and regulatory approach exclusively directed by governments.
MIACC was a process rather than a structure. Governments, industries, responders, trade unions, NGOs, etc. have shared their expertise. It has worked as a partnership for the development of standards, guidance documents, etc. in prevention, preparedness, response and recovery.
MIACC was based on the Canadian Chemical Producers Association (CCPA) Responsible Care® initiative. MIACC strength was its process to build strong consensus. Figure 1 describes the model that was developed.
s n io t P a ll u a b t l s ic In A s u u t o h d o r SAFETY r a it z ie a s H Communities
Figure 1 Safety Partner Triangle
This partnership is very important. It is the cornerstone of the approach that followed.
MIACC ceased to exist in 1999. Although, MIACC disappearance is unfortunate, it is not dramatic. A culture of partnership, of working together towards common objectives, is now well in place and influences the development of regulations.
Until 2001, Canada was unusual among the world’s industrial countries in having very little in the way of legislation and regulation controlling major accident hazards in the process industries. There was of course basic regulation of pressure vessels, flammables, etc., and a fairly comprehensive system of regulations governing traditional workplace health and safety, environmental control and so forth, but nowhere near the same degree of attention to controls instituted by other countries in the wake of high- profile incidents such as Flixborough, Seveso, Bhopal and Pasadena.
This situation started to evolve in 2001 and has changed dramatically in 2003, through several developments whose significance has however been almost entirely unnoticed by the mainstream media and is even now not fully understood by many of those affected. 3 This paper reviews some of these developments, examining what has already taken place, some of what is projected in the next five years and also other trends that could well become important. Topics include federal regulation of emergencies under the Canadian Environmental Protection Act, extension of the Criminal Code of Canada to allow criminal charges and possibly heavy penalties for senior officials and corporations, including an explicit legal duty to protect workers from harm, Quebec legislation on civil protection and Ontario’s stepwise regulation of municipal emergency preparedness with the intended goal of NFPA 1600 compliance by 2007, and the implications for the process industries. (ref. 2)
2 BACKGROUND
Before explaining the changes in the regulatory system in Canada, it is useful to review briefly how the Canadian system works.
At the most basic level, Canadians have chosen “peace, order and good government”. There is a much greater reluctance to place too much power in the hands of any single level of government. And in regard to control of major accident hazards, it is pertinent to review the jurisdiction and role of the agencies responsible for workplace and safety.
The federal agency responsible for workplace health and safety, Labour Canada, has jurisdiction only over certain workplaces that cross over provincial boundaries, such as railroads and the federal government employees. Labour Canada has no authority whatsoever in almost all process industry plants, which are entirely under the jurisdiction of the corresponding agency at the provincial level.
Similarly for emergency preparedness, the federal agency, now known as Public Safety and Emergency Preparedness Canada (PSEPC), provides only a relatively low level of coordination and support. The provincial agencies have a far stronger role, with municipalities being regulated by the provinces. This will be explained further below.
However, the responsibility for environment is shared between the federal government and the provinces.
The question of federal or provincial jurisdiction is historical, and is rooted in the division of powers under the constitution. This is most evident with Quebec retaining its distinct language and also its legal system, which is based on the Napoleonic code of France rather than the English system of common law in use in the rest of Canada.
This sensitivity to federal intervention in what are seen as provincial areas of jurisdiction helps to explain why, when other countries regulated the control of major accident hazards after Bhopal or other serious accidents, Canada relied largely on voluntary initiatives such as the Responsible Care®a program of the Canadian Chemical Producers’ Association and also MIACC. There was, until last year, no equivalent in Canada of the US Environmental Protection Agency’s SARA Title IIIb or Risk Management Program, or the Occupational Safety and Health Administration’s Process Safety Management (PSM) rule or the Seveso Directive.
However, the federal government does have more authority over the environment than over workplace health and safety, as mentioned above. The main instrument for legislative control is the Canadian Environmental Protection Act (CEPA), which is designed to act as a “safety net” for aspects not covered by other regulation, for example at the provincial level. Part 8 of the Act is concerned with environmental emergencies, though this part of the Act was devoid of any content until the 1999 revision, when sections 193 to 206 were introduced essentially as recommended by MIACC following extensive consultation and eventual consensus a few years earlier.
One other point should be made on the subject of differences between the Canadian and US legal systems as they affect control of major accident hazards. It is much more difficult for class action suits to
a Responsible Care® is a registered trademark of the Canadian Chemical Producers’ Association in Canada
b Superfund Amendments and Reauthorization Act 1986 4 succeed in Canada, and even when they do, the cost to the defendant is not as significant as in the US. The threat of civil action therefore does not seem to be as strong a motivator in Canada.
3 THE CANADIAN ENVIRONMENTAL PROTECTION ACT, SECTION 200
Of the regulatory changes during the last year which have or are likely to have a great influence on the control of major accident hazards in Canada, the one most obviously relevant is the regulation under Section 200 of CEPA. (ref. 3)
In summary, CEPA Section 200 requires any installation having any of 174 substances listed in the regulation to develop by May 18, 2004 an environmental emergency plan covering prevention, preparedness, response and recovery regarding potential emergencies involving the relevant substances, then to implement that plan, including testing, by November 18, 2004.
Although the regulation itself does not specifically refer to process safety management or risk assessment techniques, etc., the accompanying guidelines do point the user to some of the standard guidance materials available including the process safety management guide and Site Self-Assessment Tool based on the Center for Process Safety (CCPS) elements and components and made available, with permission, through the process safety management division of the Canadian Society for Chemical Engineering. (ref. 4, 5, 6)
This in itself perhaps seems like a small step forward in comparison with what has taken place in the US and Europe over the past two decades, but for Canada it represents an important start and establishes a basic framework on which further work can build when and if it becomes necessary to do so. In addition, the implications of CEPA Section 200 are much greater than they appear at first sight, because of the passage of a completely separate piece of legislation by another part of the federal government, addressing the question of corporate liability as a criminal offence.
4 BILL C-45 AND THE CRIMINAL LIABILITY OF CORPORATIONS
The second major and recent change in the Canadian regulatory landscape affecting major hazard control is the passage by the federal government on October 27, 2003 of Bill C-45, the so-called “Westray” bill. This bill amended the Criminal Code of Canada to greatly extend the criminal liability of corporations in the field of health and safety. (ref. 2)
Canada has one system of offences and penalties covering the whole country - the Criminal Code of Canada. This means that criminal offences are treated exactly the same regardless of where in the country they are committed. The code is enforced by the relevant police force, which may be municipal, provincial or federal depending on the location and the nature of the offence.
Bill C-45 was provoked by a notorious incident at the Westray coal mine in the province of Nova Scotia in 1992, where 26 miners were killed and the subsequent public enquiry revealed an almost wilful avoidance of basic safety by the mine operator coupled with a “do nothing” attitude by the provincial safety inspector overseeing the working conditions at the mine. The public attitude was further strengthened by another case at Walkerton, Ontario in 2000 when municipal employees caused several deaths from e. coli poisoning through negligent operation of the town’s water treatment system.
The new offence is similar to that of corporate manslaughter in place or under consideration in other jurisdictions such as some of the Australian states and the UK, but goes even further in extending the principle to cover not only fatalities but also serious injuries and health effects.
Up to March 31, 2004 when C-45 came into effect, it was possible for the police to convict owners of small companies with offences such as criminal negligence causing death, but it was rarely possible with larger organizations because of the difficulty of proving mens rea - the “state of mind” or conscious directing will of management in creating or allowing the conditions causing the incident to exist. With the passage of C-45, it is no longer necessary for the prosecution to be able to show criminal intent - failure to take sufficient measures to prevent an incident may be enough. 5 The new legislation makes organizations criminally liable:
as a result of the criminal actions of senior officers who oversee day-to-day operations in addition to the acts of directors or executives;
when officers with executive or operational authority become aware of offences being committed but do not take action to stop them, at least in part; or
when the actions of those with authority and other employees, taken as a whole, demonstrate a lack of care that constitutes criminal negligence. (ref. 7)
The penalties include provision for heavy fines for an organization and also possible imprisonment for individuals in positions involving oversight of others. (More information is given in the appendix to this paper, which includes a web reference for follow-up if needed).
The fact that most industries are operated responsibly - at least, for much of the time - does little to offset public indignation when someone else causes a problem. Industry did little to convince marginal operators to change their ways, and is now subject to a law which many doubtless felt was not needed for them.
Liability under the new offence is strict liability, i.e., it permits due diligence as a possible defence. However, the great cha1lenge with the new offence is that, in practice, it reverses the onus of proof. This is because it is entirely performance based, and is only applied when something has gone seriously wrong.
When charges are laid after a serious accident, it is relatively easy for the prosecution to show that the defendant failed to take reasonable care, because the obvious presence of bodies or victims is a clear indication that there were some serious deficiencies in the system intended to prevent such incidents.
The defendants therefore placed in the position of having to demonstrate that the measures taken to prevent the incident from occurring were indeed reasonable, but that the particular combination of circumstances that led to the incident in question were very unusual and could not reasonably have been foreseen, or were so unlikely that it was not practical to take them into account in the prevention measures that were in place. However, there is no mention in this legislation of any concept such as “as low as reasonably achievable” (ALARA).
The absence of any specific guidance means that it is not possible to claim that ninety nine percent of the regulation’s requirements were being met and it was just that one percent that led to the problem. Instead, it implies that the defendant may need to demonstrate a sound benchmarking process for establishing what has to be done in the first place, combined with a sound management system to ensure that accountabilities and resources are assigned and the identified tasks “get done and stay done”.
This means that it is no longer enough simply to follow a checklist, do what’s listed and move on to something else. Now, conscious thought and judgment are likely to become more important - both during the benchmarking process, because it takes some expertise just to know what’s out there as possible benchmarks to choose, and judgment because trying to follow all the advice may be beyond the practical limitations on resources and someone, somewhere will have to make a decision that some measures will be adopted while others will not.
It also calls for care in documentation, in that good documentation will be essential to the benchmarking and management system but at the same time could expose those having authority for decisions where some techniques or preventative measures are excluded or are selected but not properly enforced.
5 THE QUEBEC CIVIL PROTECTION ACT
Regulation pertaining to community preparedness for emergencies - what in the process industries can be considered as “outside the plant fence” - is primarily under the control of the provinces in Canada, as explained above. This means that the attitude regarding community emergency preparedness has 6 traditionally varied depending largely on where the facility is located. Some provinces such as Alberta and Quebec required their municipalities to have emergency plans, but the lack of enforcement and funding meant that the quality and effectiveness of plans varied greatly community to community. Voluntary initiatives such as CAERc could often make a great difference, but could only reach a limited number of communities.
The Province of Quebec was recently affected by two major natural disasters. In 1998, a major flood caused the rupture of dams in the Saguenay region causing important damages to the infrastructures and threatening the safety of the inhabitants and in 1999 an ice storm brought down the power grid. Electrical power is used directly for heating or is needed to operate heating systems. Low temperatures (-30 oC) put the safety of people at risk in some instance for more than 30 days.
An inquiry commission identified deficiencies in the emergency response plans. This lead to a major revision of the Civil Protection Act.
The new Civil Protection Act was adopted in 2001. (ref. 8) The purpose of this Act is the protection of persons and property against disasters, through mitigation measures, emergency response planning, response operations in actual or imminent disaster situations and recovery operations. The act sets the framework for Civil Protection in prevention, preparedness, response and recovery.
The act states that all persons must exercise prudence and foresight with regard to major or minor disaster risks they know to be present in their environment. Major disaster means an event caused by a natural phenomenon, a technological failure or an accident, whether or not resulting from human intervention, that causes serious harm to persons or substantial damage to property and requires unusual action on the part of the affected community, such as a flood, earthquake, ground movement, explosion, toxic emission or pandemic. Minor disaster means an exceptional event of a nature similar to a major disaster, but which only affects the safety of one or of a few persons
It also states that every person whose activities or property generate a major disaster risk is required to report the risk to the local municipality where the source of the risk is located. The report must describe the risk-generating activity or property and specify the nature and location of the source of the risk, the foreseeable consequences of a major disaster and the area that could be affected. The report must also set out the measures implemented by and the other means at the disposal of the risk reporter to reduce the probability or mitigate the consequences of a major disaster.
Municipal authorities shall develop a civil protection plan taking into account the natural and technological risks present in their jurisdiction.
The civil protection plan shall include a summary description of the physical, natural, human, social and economic features of the territory. It shall identify the nature of the major disaster risks to which the territory is exposed, specifying for each risk the location of its source, the foreseeable consequences of a major disaster related to the risk and the area that could be affected. The plan shall also mention existing safety measures and the human, physical and informational resources at the disposal of local or regional authorities and civil protection authorities.
Based on that information, the civil protection plan shall assess the degree of vulnerability of local municipalities to each risk or class of risks identified.
In order to reduce vulnerability, the civil protection plan shall then determine, for the risks or classes of risks it specifies or all or part of the territory, achievable safety objectives in view of planned measures and available resources.
A regulation needs to be published to enact the requirements.
c Community Awareness and Emergency Response (CAER) is one of the codes of practice of the Responsible Care® initiative both in Canada and the US. 7 6 THE ONTARIO EMERGENCY MANAGEMENT ACT AND PROGRAM
Ontario, a province with a large process industry base, was one of the laggards in the area of emergency planning, steadfast1y refusing for many years even to consider mandating municipal emergency preparedness, but this situation changed with the agency’s combination of new players and a heightened recognition of the value of preparedness from several real and potential high-profile situations. These included the ice storm mentioned previously that left much of the eastern part of the province without power in the middle of winter, the concern leading up to Y2K, the security concerns following the September 2001 terrorist attacks on the US, the 2003 SARSd epidemic and the great northeastern power failure in August of the same year.
In the period before MIACC dissolved, Ontario changed from being a laggard to taking over leadership of the MIACC team examining guidance for community preparedness, and has since emerged as the leading Canadian province in this field. A community self-assessment tool was developed, using a similar concept to the MIACC site self-assessment tool (ref. 9) and categorizing municipal preparedness criteria in three levels of performance - essential, enhanced and comprehensive. (ref. 10 )
This tool became the basis for Ontario’s provincial emergency management program, and in effect became a legal requirement for the province’s 443 municipalities following passage of amendments to the Emergency Management Act in April 2003. (ref. 11)
The provincial program calls for all Ontario municipalities to meet the essential level of the program by the end of 2004, the enhanced level by the end of 2005 and the comprehensive level by 2006. The intent is then to move to compliance with the National Fire Protection Association (NFPA) 1600 standard on disaster management by the end of 2007.
What is interesting about this for the process industries is that the program criteria call for municipalities to be aware of hazards and risks posed by hazardous facilities and transportation within their boundaries, then to ensure that the municipality is prepared to manage those hazards and risks effectively should an emergency occur.
Two points are especially noteworthy about this.
One is that awareness of responders and eventually activists and citizens that municipalities are expected to progress through the levels of preparedness, and that there is a similar tool for hazardous installations, is likely to lead to increasing expectations that industrial sites should also progress through to higher standards of preparedness and prevention, and certainly should be familiar with what those entail.
The other is that awareness by the same public audience of NFPA 1600 is also likely to lead to awareness of that publication’s Appendix A, which lists many of the standard techniques for risk assessment of hazardous installations (ref. 12).
This in itself would seem to be an advantage, and indeed it may well be in the long run. In the short term, however, it could reveal possible gaps in the knowledge of those responsible for risk assessment and control, and call for more openness on the techniques used and their findings than some sites are currently prepared for, as will be explained further below.
It is interesting to note that the objectives pursued by the regulators in the Provinces of Ontario and Quebec are the same, i.e. management of risk at local level while the ways to attain this objective are slightly different.
7 OTHER DEVELOPMENTS
So far this paper has dealt with regulatory developments at the federal or provincial level in Canada. There is also a distinct possibility for the picture to become more complicated due to regulation at the municipal level, particularly since a decision of the Supreme Court of Canada in 2001. This case involved a
d Sudden Acute Respiratory Syndrome 8 small lawn care company inadvertently spraying with herbicide the lawn of a family who were e opposed to such treatment. The small municipality involved - Hudson, Quebec - passed a by-law preventing such spraying within its boundaries, and the case eventually went to the Supreme Court of Canada on the question of whether municipalities had the authority to regulate activities involving public safety. The court ruled in favour of the municipality (ref. 13).
This decision appears to give municipalities the authority to regulate any activities that could affect public safety, including those involving hazardous materials. So far not much has happened as a result of this, although Calgary, Alberta - the site of several high-profile hazardous materials incidents in recent years - is moving down this path regarding the storage and handling of hazardous materials within its boundaries. The Calgary initiative appears to be founded on a sound basis, but similar actions by other municipalities are not generally considered by industry stakeholders as the way to go because the level of technical expertise and ability to enforce such regulation is much weaker at the municipal level than at the provincial or federal levels.
8 IMPLICATIONS FOR THE CANADIAN PROCESS INDUSTRIES
The implications of the above developments for the process industries in Canada can be usefully viewed from two aspects: what effects are they likely to have on the expectations of the process industries by regulators and society at large, and what gaps or deficiencies are likely to exist between those expectations and actual industry practice?
Expectations
The implementation of CEPA Section 200 can be expected to have wide-ranging effects as awareness of the database by activists and the interested public develops. The need for public communication of risks, implicit in the regulation but present in Quebec and Ontario emergency management programs and already being adopted by some other provinces, is likely to build on this, especially as local first responders and emergency planners strive to meet the expectations of their own programs and seek cooperation from operators of hazardous installations in their communities.
In the past, some industry sectors might have reacted to this by giving assurances that the situation, at least as far as they were concerned, was well under control and no additional regulatory or public oversight of their operations was necessary. These tactics are unlikely to be successful in the post 911 era, when skepticism at such blanket assurances runs high, especially since the employment and economic power and thus the political influence of some industry sectors has been greatly diminished in the business climate of recent years.
The effect of Bill C-45 is likely to be even greater in the long run, though it may well take time to develop. It may well be that little impact is felt until the first successful prosecution, at which point everyone will sit up and take notice.
Voluntary initiatives such as Responsible Care® should go a long way to head off many of these effects and may indeed be welcomed by more progressive industries, on the grounds that they help to identify the laggards by shining the spotlight where it is needed. Nevertheless, as past incidents have often revealed, even the leaders may be vulnerable, and may themselves be subject to early prosecutions in an area where the case law has yet to be established.
Gaps
It would be reassuring if those involved in process safety management in the sectors concerned were already able to demonstrate a high level of awareness and actual practice of hazard control techniques, but statistical and anecdotal evidence both suggest that the situation is not all that one would wish.
For example, responses by the members of the Canadian Chemical Producers’ Association to the site self assessment showed significant gaps, to the point where the benchmark for the essential level was
e Sudden Acute Respiratory Syndrome 9 changed for sites with high hazard potential to call for at least an awareness by a competent person of the cited techniques for risk assessment, even if a decision was taken that the techniques would not be used at that site. Attainment of the essential level by member sites has been slower than expected, despite endorsement by the association’s board of directors and follow-up via the Responsible Care® verification process. Discussions of performance by the CCPA process safety management committee f revealed concerns that, inter alia, many companies are outsourcing such work, yet the consulting organizations to whom the work is outsourced may themselves no longer possess the necessary skills while those placing the contract and supervising the work may not know enough to realize this. Informal comments heard regarding the situation in other sectors suggest that this situation is not likely to be confined to the chemical sector but may even be worse elsewhere because of the strong and beneficial effect of the Responsible Care® initiative.
Also, those who are used to the high level of regulatory support, involving not only the regulatory agencies themselves but also the consulting and legal professions, media, etc. may not realize how much of this support is missing where the regulations do not exist or have not reached the same level of maturity. Where the regulator is not available for guidance, or provides guidance only at a basic level, the site operator has to be much more self-reliant, able for example to do the necessary research for proper benchmarking and management system design.
While this may have been possible in the past, it becomes an increasing challenge to stay abreast of developments in the outside world where the situation is not static but often changing rapidly. It is correspondingly difficult to take appropriate action to stay in position, when company skills may be diminishing and those who are left, find that they have to run as fast as possible just to stay in the same place.
9 CONCLUSION
This paper summarizes the situation in Canada.
Process safety management is key to the control of hazardous substances. The United States and Europe have defined the content of their programs. Canada has referenced the programs but has not defined them specifically. This represents an added difficulty for the industry which does not have a clear reference to develop its program.
Canada has chosen a different path than other industrial countries to manage hazardous substances, but although it has come late to major hazard control regulation it is catching up fast and - depending on how the provisions of Bill C-45 are interpreted by the courts - may even pull ahead in some respects. One thing is sure - the Canadian situation in July 2004 is not the same as it was a year ago, and the expectations of the process industries have not only become much more stringent but are likely to continue to do so for the next few years.
The penalty for non-compliance has also become much more severe, and although it is more likely to be inflicted first on those where safety is not a high priority, bad things can also happen to good people, and may even happen to them first!
10 REFERENCES
1. Environment Canada, Bhopal Aftermath Review: An Assessment of the Canadian Situation, Ottawa, Canada 1986.
2. Graham D. Creedy, Shrives, John S., Phillips, Gerry, Major Hazard Control in Canada: A Change in the Regulatory Landscape, 19th Annual International Conference Emergency Planning : Preparedness, Prevention, Response, Center for Chemical Process Safety, American Institute of Chemical Engineers, N.Y. June 2004
f This committee operates jointly as a committee f the Canadian Chemical Producers’ Association and also of the process safety management Division of the Canadian Society for Chemical Engineering. 10 3. Information on Section 200 of CEPA can be found on Environment Canada’s Environmental Emergencies website www.ec.gc.ca/ee-ue/regulations/regu1ations_e.asp
4. Canadian Society for Chemical Engineering, Process Safety Management, Third Edition, Canadian Society for Chemical Engineering, Ottawa, ON, 2002, ISBN 0-920804-96-9. This guide is available from the CSChE PSM division website www.csche.ca/psm/
5. Canadian Society for Chemical Engineering, Site Self-assessment Tool, Canadian Society for Chemical Engineering, Ottawa, ON, 2004, available as above.
6. Center for Chemical Process Safety, Guidelines for Technical Management of Chemical Process Safety, New York, American Institute of Chemical Engineers, Center for Chemical Process Safety, 1989, ISBN No. 0-8169-0423-5, p5. Department of Justice news release, March 31, 2004
7. Department of Justice News Release, March 31, 2004
8. Quebec Civil Protection Act, http://publicationsduquebec.gouv.qc.ca/home.php#
9. Creedy, Graham D., Use of a Benchmark Site Self-Assessment Tool as a Leading Indicator for Tracking and Promoting Process Safety Management in the Canadian Chemical Industry, Canadian Society for Chemical Engineering conference, Vancouver 2002
10. The community self-assessment tool has undergone some minor revision since its initial development, but the basic framework can be seen in the guide published by the Montreal regional MIACC, known as the Conseil regional des accidents industriels majeurs (CRAIM). CRAIM has since been made its guide available to the United Nations Environment Programme(IJNEP) APELL programme; the guide can be downloaded from the website www.uneptie.org/pc/apell/publications/related_pubs.html
11. .S.O. 1990, Chapter E.9, amended by: 1999, c. 12, Sched. P, ss. 3-9; 2002, c. 14, ss. 2-16; 2002 c.17, Sched. C, s. 10; 2003, c. 1, s. 14
12. National Fire Protection Association, Standard for Disaster Emergency Management, 2000 Edition, Quincy, MA, 2000
13. [2001] 2 S.C.R. 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town)
APPENDIX 1: SUMMARY OF BHOPAL AFTERMATH RECOMMENDATIONS
The Bhopal Aftermath Review formulated 21 recommendations which are listed below:
1. Risk Assessment:
a. Using the hazards criteria as a basis for identifying the chemicals of importance, a site- specific risk assessment should be carried out for each industrial plant to determine the potential for a major industrial accident;
b. Industry should involve community officials in risk assessment;
c. Provide Material Safety Data Sheets (MSDSs) to emergency response team through public officials;
d. Establish a central clearing house for MSDSs.
2. Chemical spill response information:
a. Transport Canada’s initial response book “Dangerous Goods Initial Emergency Response 11 Guide” should be reviewed and Environment Canada’s second level response manual “Manual for spills of Hazardous Materials” should be updated and expanded to include on a priority basis Bhopal-type chemicals listed in Schedule XII, Part II of Transport of Dangerous Goods Regulations;
b. Government agencies, industry, and representatives of first responders should determine how this information might best be disseminated to users. The policy of cost recovery of such materials should be examined.
3. Safety audit and assessments:
a. Industry through its associations and governments should determine the actual status of safety and accident prevention programs as well as auditing activities in medium and small operations.
b. Major industrial associations should provide assistance to medium and small companies and share information relevant to establishing safety and accident prevention programs.
c. The standard safety assessment procedure developed by the Canadian Chemical Producers’ Association or the Five Star Program should be implemented widely by all chemical user industries to establish and maintain adequate safety management programs.
4. Steps to hazard reduction
Companies using or manufacturing hazardous chemicals should:
a. Minimize inventories of hazardous materials;
b. Exchange information on accidents and “near misses”;
c. Ensure that personnel are fully trained and knowledgeable about the hazardous chemicals they are required to handle.
5. Safety statistics:
a. Government and industry should make safety statistics available to one central clearing house such as Statistics Canada or the Canadian Centre for Occupational Health and Safety. These statistics should specially include data related to hazardous chemical accidents.
6. Contingency planning;
a. Contingency plans and planning guidelines such as those developed by the Canadian Petroleum Association and the Alberta Public Safety Services for possible sour gas releases, as well as the emergency preparedness assessment program of the Canadian Chemical Producers’ Association, should be used as exemplary models by all companies involved with Bhopal-type chemicals to develop contingency plans;
b. Companies that use chemicals of concern and their industry associations (e.g., the Canadian Pulp and Paper Association, the Mining Association of Canada, and the Canadian Manufacturers Association) should, in consultation with the appropriate agencies, review their emergency preparedness programs to ensure a firm commitment to spill prevention, an initial response capability, and a rapid access to response teams;
c. The Canadian Trucking Association, in cooperation with provincial emergency measures agencies and others that administer the on-highway transportation of dangerous goods, and in consultation with Transport Canada and the Canadian Chemical Producers’ Association, should review existing training programs for truckers and handlers of Bhopal-type chemicals to ensure that adequate knowledge of initial-response actions for such chemicals 12 is being provided. A follow up to the review may involve specific projects for individual companies or for the association;
d. The many small railways in Canada should consult with CN and CP, and with other government agencies to ensure adequate capacity for dealing with incidents involving Bhopal-type chemicals. The adequacy of their response capabilities, including counter measures equipment available from mutual-aide sources, should be examined and additional capability should be acquired if necessary;
e. The Canadian Coast Guard (Ship Safety and Emergencies groups), in consultation with the industrial associations and appropriate government agencies, should review the spill prevention and response capability of the shipping industry.
7. Reporting and analysis
As the database for plant-site releases should parallel the activity for transportation incidents:
a. Legislation requiring the reporting of spills/releases from non-transportation accidents to a particular government agency on a mandatory basis should be examined;
b. Government agencies should re-examine the National Analysis of Trends in Emergencies System (NATES) program and the level of resources necessary to maintain and improve the system.
8. Using contaminant levels for planning evacuations:
a. A government/industry/public sector study group should be formed to determine the concentrations of hazardous chemicals in the ambient air at which public protection procedures should be initiated.
9. Lessons from accidents:
a. Through their industry associations, the Canadian chemical and petroleum industries should jointly evaluate existing accident information exchange systems and, in consultation with federal and provincial governmental agencies, develop a cooperative Canadian Program or increase the level of participation in existing international systems, to ensure a greater exchange and application of accident lessons learned in Canada. Other industries and all levels of government should be encouraged to participate whenever appropriate.
10. Chemical training for first responders:
a. For their own protection, and for the protection of the communities they serve, first responders should be trained to access chemical expertise before attempting to control unfamiliar chemicals or mixtures;
b. Agencies responsible for providing this chemical expertise should ensure that their programs are widely known by all first responders;
c. In those municipalities where hazardous chemicals are manufactured, used or transported, the training of first responders should be continually upgraded and carried out with industry whenever possible;
11. Buffer zones:
a. Municipalities should introduce zoning regulations to create buffer zones between residential areas and new or existing (when possible) industrial sites;
b. Senior government should increase their efforts to assist municipalities in siting new installations to handle chemicals away from residential areas. 13 c. Where existing industrial plants dealing with hazardous chemicals are already located in close proximity to residences, such plants should examine the feasibility of producing less hazardous chemicals at that site, make a concerted effort to conduct more frequent safety audits, and develop contingency plans on a priority basis in conjunction with local authorities.
12. Dangerous goods routes
a. Government at all levels should examine the need for legislation or guidelines to establish traffic routes for dangerous goods to minimize the risk of public exposure.
13. Community awareness and response:
a. The Canadian Chemical Producers’ Association and other appropriate industrial associations should develop programs for their companies based on the principles of the Community Awareness and Emergency Response Program developed by the U.S. chemical industry. Canadian Chemical Producers’ Association (CCPA) members should pass on the principles of this program to their major customers and other industry associations;
b. Municipal governments should become aware of the potential chemical hazards that exist in their communities and, working with other levels of government, ensure that resources are provided to establish adequate public protection measures;
c. Working together, industry and local governments, aided by representative association such as CCPA and the federation of Canadian Municipalities, should establish closer liaison and develop formal programs for community awareness and emergency response;
d. Municipalities/provinces through existing emergency response associations, should establish the need for a public warning in case of a localized, rapidly developing event such as a Bhopal-type incident.
14. Emergency planning support
Where such arrangements do not currently exist, provincial agencies, with the assistance of federal departments as necessary should:
a. Provide guidance to the municipalities on how to prepare emergency response plans;
b. Provide financial support to those small municipalities which cannot develop or implement emergency response plans with their own resources;
c. Maintain inventories of emergency response equipment and be able to assist in the coordination and allocation of equipment and manpower in the event of major accidents.
15. Chemical incident simulation exercises
a. To ensure the adequacy of emergency response plans, all emergency organizations should periodically carry out exercises to simulate an incident, evaluate the effectiveness of the response and make improvement where necessary.
16. Coordination of legislation pertaining to hazardous chemicals
a. Federal and provincial governments should examine the coordination of legislation and programs particularly in relation to the prevention of major industrial accidents within their jurisdictions to ensure that gaps do not exist.
17. Technology development
a. Environment Canada should continue its work as the federal focal point for research and 14 development related to chemical spill counter measures. It must also continue to monitor and participate in relevant spill technology projects undertaken elsewhere in the world relating to existing high priority toxic chemicals and other chemicals identified as having potential to create Bhopal-type incidents. However, increased input on needs and priorities should be sought from federal, provincial, municipal and industrial users of the technology;
b. The petroleum and chemical industries should continue to participate with Environment Canada in relevant research projects both for Bhopal-type chemicals and other spill problems. Industry associations should further encourage the marketing or sharing of useful information where the research and development is being done by individual companies.
c. Groups of chemical companies producing or using products having similar properties or behaviour should pool their resources and undertake jointly, or in cooperation with Environment Canada, specific new counter measures projects for Bhopal-type chemicals and other priority chemicals having medium-to-major spill potential.
18. Emergency medical treatment
a. The Department of Health and Welfare should lead a federal/provincial study group, including professionals in emergency medicine, to clarify and consolidate information for emergency medical treatment and first aid for victims of chemical accidents, and those exposed to combustion products of combustion fires. A secondary task of this group would be to review training and planning aspects of mass casualty care particularly as they relate to a major chemical incident. This group should also identify shortfalls in the information base and seek sponsors/funding for projects to fill the missing information. This information should be distributed to hospitals, poison control centres and emergency clinics, as well as medical teaching institutions and first aid training organizations such as St. John’s Ambulance;
b. The establishment of a national emergency medical aid response centre or regional centres should be considered in this group.
19. Advanced emergency preparedness activities
a. Public protection decisions require knowledge by local authorities of expected movement of airborne chemical clouds, and an ability to warn residents quickly. To assist local authorities in public protection, realistic trajectory modeling should be available, together with alarm systems for all areas where major incidents may occur.
b. A study, with provincial, municipal, federal and industrial participation, should be initiated by agencies concerned with emergency preparedness to determine the feasibility of an objective measurement system for emergency response capability. If feasible, the system should be developed and applied to all levels of government.
c. A continuing program for further education and professional career development of emergency managers and planners should be developed in Canada, as a joint federal/provincial project, in consultation with industrial and municipal emergency planners.
20. Professional safety training
a. Scientific and engineering professionals should receive training in accident and loss prevention. Industrial management courses should address safety as an integral part of the manager’s range of responsibilities.
21. Right-to-know legislation 15 a. The issue of “right-to-know” with all its various facets should be examined in a separate study involving governments (at all levels), industry and representatives of environmental and public interest groups.
APPENDIX 2: HIGHLIGHTS OF BILL C-45
This information is from the Legislative Summary dated July 2003. The Bill was passed October 27, 2003 and came into effect March 31, 2004. For more information, see the web www.parl.gc.ca/37/2/parlbus/chambus/house/bills/summaries/c45-e.pdf
The criminal liability of corporations and other organizations will no longer depend on a senior member of the organization with policy-making authority (i.e., a “directing mind” of the organization) having committed the offence.
The physical and mental elements of criminal offences attributable to corporations and other organizations will no longer need to be derived from the same individual.
The class of personnel whose acts or omissions can supply the physical element of a crime (actus reus) attributable to a corporation or other organization will be expanded to include all employees, agents and contractors.
For negligence-based crimes, the mental element of the offence (mens rea) will be attributable to corporations and other organizations through the aggregate fault of the organization’s “senior officers” (which will include those members of management with operational, as well as policy-making, authority).
For crimes of intent or recklessness, criminal intent will be attributable to a corporation or other organization where a senior officer is a party to the offence, or where a senior officer has knowledge of the commission of the offence by other members of the organization and fails to take all reasonable steps to prevent or stop the commission of the offence.
Sentencing principles specifically designed for corporate/organizational offenders will be adopted.
Special rules of criminal liability for corporate executives will be rejected.
An explicit legal duty will be established on the part of those with responsibility for directing the work of others, requiring such individuals to take reasonable steps to prevent bodily harm arising from such work.