RDIMS # 6226056

SHIP-SOURCE HAZARDOUS & NOXIOUS SUBSTANCES (HNS) INCIDENT

PREPAREDNESS AND RESPONSE REGIME

Information Paper

Marine Safety Directorate

TRANSPORT CANADA

NOVEMBER 2010

RDIMS # 6226056

Table of Contents

1.0 Introduction 1

2.0 Background 1

3.0 OPRC-HNS Protocol 4

4.0 Moving Towards a Ship-Source Hazardous & Noxious Substances Incident

Preparedness and Response Regime 9

Annex 1 – OPRC-HNS Protocol 13

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1.0 INTRODUCTION

Considering the increasing volume of Hazardous and Noxious Substances (HNS), including

miscellaneous types of hazardous chemicals transported in Canadian waters, the risk of an HNS

incident is also increasing. Ship-source incidents involving HNS occur every year around the

world. So far the impact of these incidents has been low for various reasons: small volume

spilled, low toxicity of the material, etc. In Canada, the increase in transportation of dangerous

substances is raising the risk that a marine HNS-related incident may occur. In an effort to

improve Canada’s ability to combat marine pollution, consideration should be given for the

creation and implementation of a Ship-Source Hazardous & Noxious Substances Incident

Preparedness and Response Regime.

2.0 BACKGROUND

Responding to a marine HNS incident could be a very complex operation involving a large number

of different stakeholders: specialized emergency response teams, emergency response

contractors, local Hazmat Teams, provincial and federal Departments, local authorities, carriers,

port authorities, etc. Among other functions, the principal actions and tasks to be undertaken by

responders would be: to mitigate the effects of an HNS spill or leak by first assuring the safety of

the public, ship crews and responders; to protect the environment; and to analyze the situation

with a view to taking proper action to respond to the incident and perform a clean-up.

An HNS preparedness and response regime should, at a minimum, contain the proper

mechanisms to respond to emergencies involving all types of pollutants except those considered

as persistent oils1, which are covered under the existing Canadian Oil Spill Preparedness and

Response Regime. Preparedness and response activities under an HNS Regime shall include all

means of containment such as bulk and packaged goods. HNS transported in bulk represent a

greater risk considering the large volume of material and the immediate impact that an incident

would have on the environment. However, HNS are widely transported in other means of

containment such as cylinders of gas, drums, containers and other forms of packaging. The

diverse nature of packaged hazardous goods makes emergency response even more complex and

increases the number of people involved in the response. Ultimately, an HNS Regime could be

applied to all types of dangerous goods in any means of containment.

Canadian Context

The need for a formal emergency response regime, for both oil and chemical substances, was

identified as early as 1990 in the Public Review Panel on Tanker Safety and Marine Spills Response

Capability, usually referred to as the Brander-Smith Report. Before work started on the

establishment of an HNS response system, a response regime to deal with oil and petroleum

products was developed and came into force in 1995 through amendments to the Canada

Shipping Act.

1 Non-persistent oils are those that are generally of a volatile nature and are composed of lighter hydrocarbon fractions, which tend to dissipate rapidly through

evaporation. In contrast, persistent oils generally contain a considerable proportion of heavy fractions or high-boiling material. Oils, which are normally classified as persistent, include crude oils, fuel oils, heavy diesel and lubricating oils. Non-persistent oils include gasoline, light diesel oil and kerosene.

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In the mid-1990s, as a result of several recommendations in the Brander-Smith Report, the

Canadian Coast Guard (CCG) initiated the development of a Marine Chemical Emergency

Response (MCER) system for HNS spills in Canadian waters. In April 2004, following the

Departmental reorganization between Transport Canada and the Department of Fisheries and

Oceans, responsibilities related to marine safety policies were transferred to Transport Canada

(TC). Those responsibilities include the development and implementation of an HNS Regime.

As part of the work done by the Canadian Coast Guard in 1995, seven fundamental principles

were adopted for the design of a Canadian marine chemical emergency system. Transport

Canada believes those principles continue to be valid and lay the foundation for an HNS regime.

The principles are summarized below:

1- Polluter Pay

� Cost of clean-up, response, and restoration would be the responsibility of those who

caused the pollution/incident

2- User Response:

� Response to incidents would be carried out by the industry under the supervision of

the federal government

� Manufacturers of chemicals to be involved because of their knowledge in the

products

3- Minimal Cost for Government

� Funding for preparedness and response should be provided by private industry (e.g.

through a levy system imposed on marine carriers)

4- Fairness and Equity

5- Building on existing resources

6- Harmony with International Regimes

� HNS Convention (1996) and HNS Protocol (2010)

� OPRC Convention (1990) and OPRC-HNS Protocol (2000)

� International Maritime Dangerous Goods Code

7- Harmony with other Domestic Regimes

� Transport of Dangerous Goods Act (TDG)

� Other departments (CCG, Environment Canada)

� Provinces and municipalities

The same year (1995), an extensive study of marine chemical transportation in Canada written by

Acres International Ltd. was published in a report entitled Considerations for a Canadian Marine

Chemical Emergency Response. It should be noted that due to the passage of time, this essential

baseline study would need to be updated as the study’s picture of trade and traffic in Canada may

no longer be accurate. Similarly, the nature of the fleet carrying hazardous materials may have

changed. Both of these factors could affect the risk analysis of marine hazardous materials

incidents in the study’s conclusion.

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Justification

In addition to the recommendations provided in the Brander-Smith Report, Transport Canada also

put forward various strategies for the implementation of an HNS regime in Canada. These

strategies can be found in the following documents:

1. Transport Canada’s Sustainable Development Strategy (2007-2009) http://www.tc.gc.ca/eng/policy/acs-sd-sds0709-challenge5-528.htm

CHALLENGE 5: Improve Performance of Carriers and Operators

COMMITMENTS 5.2: Marine Sector Pollution Control

The design and implementation of an effective national accident prevention and response regime

for hazardous and noxious substances (HNS), sufficient for Canada to meet its obligations under

the OPRC-HNS Protocol.

TARGETS:

� Develop the legislative structure required to put an HNS regime in place together with the

necessary regulations and standards starting in 2007/2008.

� Create the required HNS response mechanism in order to provide a nationally consistent

method of responding to, and managing, the response to marine HNS incidents and spills from

ships and during the loading and unloading of ships at chemical handling facilities starting in

2007/2008.

� Take the necessary action to permit Canada to accede to the OPRC-HNS Protocol starting in

2009/2010.

PERFORMANCE MEASURES:

1) Number of regulations and standards developed.

2) Effectiveness of a national HNS incident response framework.

3) IMO indication of Canada’s accession to the OPRC-HNS Protocol.

2. The New Wave – Marine Safety Strategic Plan 2008-2015 http://www.tc.gc.ca/publications/en/TP13111/pdf/hr/tp13111E.pdf

The challenges for the Marine Safety Program are to:

viii) Design and implement an efficient national incident prevention and response regime to cope

with spills of hazardous and noxious substances, which meet Canada’s obligations under the

international Protocol on Preparedness, Response and Co-operation to Pollution Incidents by

Hazardous and Noxious Substances (OPRC-HNS Protocol). Page 21

3. Transport Canada Report on Plans and Priorities 2009-2010 http://www.tbs-sct.gc.ca/rpp/2009-2010/inst/mot/mot-eng.pdf

• 2.2.2 Programs Activity: A Clean Water from Transportation

Planning Highlights:

Develop a national regime for preparedness and response to Hazardous and Noxious

Substances incidents.

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3.0 OPRC-HNS Protocol

In March 2000, the International Maritime Organization (IMO) adopted the Protocol on

Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious

Substances, 2000 (OPRC-HNS Protocol) at a diplomatic conference held at IMO headquarters in

London. The Protocol follows the principles of the International Convention on Oil Pollution

Preparedness, Response and Co-operation, 1990 (OPRC Convention) and aims to provide a global

framework for international co-operation in combating major incidents or threats of marine

pollution. Parties to the OPRC-HNS Protocol are required to establish measures for dealing with

pollution incidents, either nationally or in co-operation with other countries. Ships and seaports

are required to develop and maintain pollution emergency plans to deal specifically with incidents

involving HNS.

The OPRC-HNS Protocol entered into force internationally in July 2007. It ensures that ships

carrying HNS are covered by regimes similar to those already in existence for oil incidents. To

date, 25 states (see figure below) have ratified the OPRC-HNS Protocol, which represents

approximately 32% of the world tonnage. There are only a few states that have implemented the

full provisions of the Protocol and established national systems for responding to HNS in all forms.

The following is a summary of some important articles (requirements) of the OPRC-HNS Protocol

and their main implications. The full text of the OPRC-HNS Protocol can be found in Annex 1 of

this document:

Article 2 (Definitions)

For the purpose of this Protocol:

1. “Pollution incident by hazardous and noxious substances” (hereinafter referred

to as “pollution incident”) means any occurrence or series of occurrences having

the same origin, including fire or explosion, which results, or may result, in a

discharge, release or emission of hazardous and noxious substances and which

poses, or may pose, a threat to the marine environment or to the coastline or

related interests of one or more states and which requires emergency action or

immediate response.

2. “Hazardous and noxious substance” means any substance other than oil which, if

introduced into the marine environment, is likely to create hazards to human

health, harm living resources and marine life, damage amenities or interfere

with other legitimate uses of the sea.

3. “Sea ports and hazardous and noxious substances handling facilities” means

those ports or facilities where such substances are loaded on to or unloaded

from ships (…)

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NOTE: Similar to the CSA 2001 definition of a pollutant but with fewer constraints, the IMO

definition of an HNS is very broad, allowing most chemicals and noxious substances to be taken into

account. However neither definition explicitly covers gases (flammable, toxic, corrosive, etc.). It

would be the intention of TC to extend the definition of HNS to gases. For example, a major leak of

a flammable gas on a ship near a port could become an extremely dangerous hazard to the

population, nearby workers and communities; a similar emergency could occur with a poisonous

gas. The definition of an HNS should be amended to eliminate any ambiguity regarding the

receiving environment (instead of “…introduced into the marine environment” it should read

“…introduced into the environment”). In addition, CSA 2001 defines oil as petroleum products in

any form, excluding liquefied petroleum & natural gas products. For the reasons mentioned above,

a HNS Regime would need to include such products. By expressly extending the coverage of the HNS

Regime to gases, TC intends to increase the safety and protection of the public.

Article 3 (Emergency plans and reporting)

1. Each Party shall require that ships entitled to fly its flag have on board a pollution

incident emergency plan and shall require masters or other persons having

charge of such ships to follow reporting procedures to the extent required (…)

2. Each Party shall require that authorities or operators in charge of sea ports and

hazardous and noxious substances handling facilities under its jurisdiction, as it

deems appropriate, have pollution incident emergency plans or similar

arrangements for hazardous and noxious substances that it deems appropriate

which are coordinated with the national system established in accordance with

article 4 and approved in accordance with procedures established by the

competent national authority (…)

NOTE: With regard to the requirement that every ship have an emergency plan on board, section

188 of the CSA 2001 should be amended to include the expression “hazardous and noxious

substances”, and sections 18, 38, 66 and 73 of the Regulations for the Prevention of Pollution from

Ships and for Dangerous Chemicals should be amended in consequence. Specifications such as

minimum quantities would have to be provided to establish guidelines.

Article 4 (National and regional systems for preparedness and response)

1. Each Party shall establish a national system for responding promptly and

effectively to pollution incidents. This system shall include as a minimum:

(a) the designation of:

(i) the competent national authority or authorities with responsibility for

preparedness for, and response to, pollution incidents;

(ii) the national operational contact point or points; and

(iii) an authority which is entitled to act on behalf of the state to request

assistance or to decide to render the assistance requested;

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(b) a national contingency plan for preparedness and response which includes the

organizational relationship of the various bodies involved, whether public or

private, taking into account guidelines developed by the International Maritime

Organization.

2. In addition, each Party within its capabilities, either individually or through bilateral

or multilateral cooperation and, as appropriate, in cooperation with the shipping

industries and industries dealing with hazardous and noxious substances, port

authorities and other relevant entities, shall establish:

(a) a minimum level of pre-positioned equipment for responding to pollution

incidents commensurate with the risk involved, and programs for its use;

(b) a program of exercises for pollution incident response organizations and

training of relevant personnel;

(c) detailed plans and communication capabilities for responding to a pollution

incident. Such capabilities should be continuously available; and

(d) a mechanism or arrangement to coordinate the response to a pollution

incident with, if appropriate, the capabilities to mobilize the necessary resources.

3. Each Party shall ensure that current information is provided to the Organization,

directly or through the relevant regional organization or arrangements, concerning:

(a) the location, telecommunication data and, if applicable, areas of responsibility

of authorities and entities referred to in paragraph 1(a) above;

(b) information on pollution response equipment and expertise in disciplines

related to pollution incident response and marine salvage which may be made

available to other states upon request; and

(c) its national contingency plan.

NOTE: Article 4 establishes the guidelines for an HNS Response Regime. The framework for a

Canadian regime and the procedures, functions and responsibilities of all stakeholders would be

established by Transport Canada. The matter of a minimum level of processes and equipment to

respond to HNS pollution incidents would need to be considered on the basis of risk management

studies. Considerations would be made to adapt the type of equipment required to respond based

on the quantity but also on the type of chemicals transported in a specific region. A program of

exercises for pollution incident response organizations and of training of relevant personnel, would

need to be expanded. Finally, attention would also have to be paid to a detailed communication

plan for responding to an incident as well as a mechanism or arrangement for coordinating the

response to an incident in order to mobilize necessary resources.

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Article 7 (Technical co-operation)

1. Parties undertake directly or through the Organization and other international

bodies, as appropriate, in respect of preparedness for, and response to, pollution

incidents, to provide support for those Parties which request technical assistance:

(a) to train personnel;

(b) to ensure the availability of relevant technology, equipment and

facilities;

(c) to facilitate other measures and arrangements to prepare for and

respond to pollution incidents; and

(d) to initiate joint research and development programs.

2. Parties undertake to co-operate actively, subject to their national laws,

regulations and policies, in the transfer of technology in respect of preparedness

for, and response to, pollution incidents.

NOTE: By acceding the OPRC-HNS Protocol, Canada would ensure that it receive technical

support/training from other state parties. This could assist in developing a national regime that

reflects international best practices.

International Development

Transport Canada has studied the marine spill preparedness and response regime of other states,

in particular Australia, the United States and Japan. This confirmed that the implementation

process differs from one state to another and that the experience acquired during the ratification

process and the lessons learned by those states could assist Canada in developing its own regime.

Although the legal and administrative frameworks of those countries may differ from Canada’s,

they nonetheless provide important case scenarios on how the OPRC-HNS Protocol has been

implemented and the difficulties that may be encountered during the process.

Australia

Australia has signed the International Maritime Organization’s Protocol on Preparedness,

Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances (OPRC-

HNS). This means that as signatories to the protocol, under the Australian Maritime Safety

Authority (AMSA)’s National Plan, Australia’s ports, maritime industries and first response

agencies are now required to develop detailed plans for reducing risks in relation to HNS pollution

incidents. These plans include:

• the establishment of HNS spill combating equipment stockpiles,

• the holding of HNS spill combating exercises, and

• the training of staff in marine HNS spill response.

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After consultations between government officials and industry, Australia developed the National

Marine Chemical Spill Contingency Plan (ChemPlan) in response to the obligations set out in

article 4 of the OPRC-HNS Protocol. With this ChemPlan, Australia was able to accede to the

OPRC-HNS Protocol in 2005. AMSA is now responsible for maintaining the plan as the national

safety agency responsible for marine safety and the protection of the marine environment. The

scope of the ChemPlan “…relates primarily to incidents involving releases and spills from ship’s

bulk chemical cargoes, from container chemical tanks or packaged chemicals”. The ChemPlan

outlines how the combined resources of the federal and state governments as well as the

chemical, plastics, shipping and exploration industries may be activated to respond to a threat

posed to Australia, it's population and the marine environment by discharges of bulk or packaged

dangerous goods and chemicals from vessels. But to this date, federal officials have not defined

procedures to respond to a major incident involving packaged HNS substances and keep the

related costs feasible. ASMA conducted a study to assess the marine traffic of HNS in 2006 but it

only focused on MARPOL Annex II Category A, B and C bulk chemicals2.

United Sates

The United States ratified the OPRC Convention but is not party to the OPRC-HNS Protocol. In

early 2000, the U.S. expressed serious concerns regarding several Articles of the draft Protocol.

These comments specifically focused on certain aspects of the Protocol that are inconsistent with

U.S. domestic regulation or policy relating to HNS contingency planning, prevention and/or

response. As a result, the U.S. has reserved its position on the draft Protocol. On the other hand,

the U.S. produced a series of internal laws and regulations, which constitute the foundation of the

country’s emergency management program. In the U.S., hazardous substances response is

regulated under a number of different federal statutes, including the Resource Conservation and

Recovery Act, the Superfund Amendments and Reauthorization Act, the Clean Air Act and the

Occupational Safety and Health Administration (OSHA). The management and response to

hazardous substances incidents is therefore covered under many pieces of legislation (Clean

Water Act, Oil Pollution Act, Hazardous Material Transportation Act, etc.) with varying degrees of

responsibilities for specific agencies.

The Oil Pollution Act of 1990 amended the Clean Water Act, which strengthened the national

response system and improved coordination of spill contingency planning among federal, state

and local authorities. These amendments resulted in a new National Oil and Hazardous

Substances Pollution Contingency Plan (NCP). As required by the Clean Water Act of 1972, the

NCP was revised in 1973 to include a framework for responding to bulk hazardous substances

spills as well as oil discharges. Following the passage of Superfund legislation in 1980, the NCP

was broadened to cover releases at hazardous waste sites requiring emergency removal actions.

Over the years, additional revisions have been made to the NCP to keep pace with the enactment

of legislation.

2 The Annex II “Regulations for the control of pollution by noxious liquid substances in bulk” defines a four-category categorization system for noxious and liquid

substances. A revised classification came into force on January 1st

2007: Categories A, B, C, D were replaced by X, Y, X, and other substances.

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Japan

In Japan, the domestic law relating to the Prevention of Marine Pollution and Maritime Disaster

was revised in 2006 due to the accession to the OPRC-HNS Protocol. Since April 2008, when a

tanker carrying HNS of more than 150 GT sails in specific and pre-designated waters of the

country, the owner is required to secure response materials, equipment and expertise necessary

for the prevention and elimination of an HNS spill at the location near a route where help can be

quickly mobilized. Failure to meet this requirement, ship owners face a penalty up to 500,000 Yen

(approximately $6,000.00 CDN). At the present time, the Maritime Disaster Prevention Center

(MDPC) – a government body, is the only organization in Japan that can offer HNS maritime

emergency response services. To obtain the service, each designated vessel must apply for a

certificate and pay the proposed fee (based on tanker tonnage), which is directly deposited in the

MDPC bank account. Cost for responding to an actual incident is charged separately. Note that

the Japanese regime only deals with HNS carried in bulk.

4.0 MOVING TOWARDS A MARINE HAZARDOUS & NOXIOUS SUBSTANCES INCIDENT

PREPAREDNESS AND RESPONSE REGIME

On December 12, 2003 the federal government announced that the Coast Guard was to become a

Special Operating Agency. As a result, a number of changes including rationalizing responsibility

for marine safety and security policy under the Minister of Transport were also introduced.

Responsibilities were transferred from the Department of Fisheries and Oceans (DFO) to

Transport Canada (Policy Group, Marine Safety) including those portions of the Marine Programs

Branch that are responsible for policy related to pleasure craft safety, marine navigation services,

pollution prevention and response, and navigable waters. In March, 2004, the Environmental

Response Division was transferred to Transport Canada except for the portion of that group

responsible for carrying out the powers, duties and functions of the Minister of Fisheries and

Oceans under section 180 (Response Measures) of the Canada Shipping Act, 2001 (CSA 2001)

TC and DFO have distinct but interrelated responsibilities for the overall management of marine

safety and environmental protection. The responsibilities that were transferred to TC encompass

the development of policy as well as implementation, enforcement and administration. DFO

(CCG) retains the responsibility for non-regulatory programs and services including program

design, operational standards and levels of service, monitoring and reporting.

Since May 2003, efforts have been made by the federal government to initiate the planning of the

HNS Regime. The first phase was to analyze and evaluate the work that had been done in the

past and identify the elements that were considered important issues. The next phase was to

plan and define the options that would constitute the framework for a national HNS Regime.

The fundamental objective of the HNS Regime is to develop and implement national policies,

frameworks and procedures to mitigate the environmental impact of HNS incidents on Canadian

coastal and inland waters, as well as to ensure the protection and safety of the public.

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This would be achieved through:

� Development of criteria for national response requirements for the HNS Regime

� Establishment of roles and responsibilities for all parties (Transport Canada,

Environment Canada, Canadian Coast Guard, industry, etc.)

� Conducting a technical evaluation of the marine chemical industry (manufacturers,

carriers, ports, etc.), which would include:

o Identification of all HNS and their classification;

o Emergency procedures (response, public safety);

o Clean-up and decontamination.

� Development of Emergency Response Procedures

� Drafting of legislation and standards

� Communication procedures and plans

� Training plan

� Exercises (field/tabletop)

Regime Models

The following are national regime models that could be established:

1. Public sector-led regime

2. Joint public/private sector-led regime

Model 1 - Public sector-led regime

The public sector would have the responsibility to manage the HNS Regime and respond

at all times to an incident.

Considerations:

� HNS Regime framework to be put in place.

� The public sector is the main responder.

� The public sector would have the power to hire contractors for special

chemicals.

� Completely managed by the government.

� Co-ordination within government and other federal/provincial organizations.

Comments:

A response system managed and operated by the public sector would imply that the costs

for the government could be high since it would have to finance all expenses related to

emergency response to HNS incidents. The amount that would have to be committed

would require appropriation of funds for equipment maintenance and training/exercises.

In the domain of HNS, a greater participation of the industry in the emergency response

operations is a principle already set out in the Transportation of Dangerous Goods Act.

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Model 2 - Joint public/private-led regime

The public sector would have the sole responsibility for the regulatory and policy

framework supporting the HNS Regime, while the response component could be given to

private industry , as is currently the case for the Canadian oil spill response regime.

Considerations:

� A system managed by the public sector in co-operation with other

federal/provincial organizations.

� Private sector to plan for and respond to incidents under the supervision of

the public sector.

� Manufacturers of chemicals take responsibility under the “Responsible Care”

program.

Comments:

A marine chemical emergency response system based on response by private industry

could meet the government’s objectives. In fact, chemical specialists would be dealing

directly with the response operations and would contribute to enhancing the security and

safety of the public and the front-line responders when an incident occurs. Emergency

response contractors located across the country also have considerable expertise and

could handle most incidents of transportation of dangerous goods.

In the Transport of Dangerous Goods Directorate of TC, a system based on this principle

has been in place since 1986. For transportation by road and rail of certain highly

dangerous goods, the shipper/consignee must have an Emergency Response Assistance

Plan (ERAP), which explains the plan of action in case of an emergency prior to shipment

of the goods. This system has proven its effectiveness on many occasions over the years.

The federal government would obviously not always be directly involved in the

operational portion of an emergency. Its role could be to monitor and evaluate the

situation and make sure that the interests of the Canadian public are protected and that

the established procedures and regulations are followed.

Regime Model Consideration

To respond to an HNS spill or release, a coordinated effort of industry and government would

most likely be an efficient and viable system. Private industry (emergency response contractors,

specialized response teams for the chemical manufacturers, etc.) has the expertise to respond to

most chemical incidents on land (road, railway). However, a marine emergency response would

necessitate a different approach in terms of logistics and overall procedures.

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André Laflamme

Senior Advisor Hazardous and Noxious Substances /

Conseiller principal – substances nocives et dangereuses

Tel/Tél : (613) 990-9414

Email/courriel: andre.laflamme@tc.gc.ca

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Annex 1

OPRC-HNS Protocol, 2000