Thank you, Madam Chair.
Honourable members of the committee, thank you for once again inviting the agency to appear before you.
My name is Fred Gaspar. I am the chief compliance officer for the CTA. With me today is Randall Meades, our chief strategy officer, as you've heard.
We are representing our chair and CEO, Scott Streiner, who unfortunately could not be here today as he's travelling outside the country, but he did ask us to advise you that he looks forward to appearing before this committee at the next possible opportunity.
I'd like to start by offering a brief overview of our organization and its mandate.
The Canadian Transportation Agency is an independent body. As a federal quasi-judicial tribunal and regulator, we have jurisdiction over a broad range of air, rail and marine matters.
The Agency has essentially three core mandates. Its first mandate is to help keep the national transportation system running efficiently and smoothly. The second mandate is to protect the human rights of travellers with disabilities by ensuring that the transportation system is fully accessible. And the third mandate is consumer protection for air travellers.
The Canada Transportation Act is the Agency’s enabling statute. It outlines the extent of the Agency's authority and jurisdiction, as well as the Agency's role in administering the Act.
The Agency shares responsibility for certain provisions in the Railway Relocation and Crossing Act and the Railway Safety Act, focused mainly on resolving disputes and cost recovery.
The Canadian Transportation Agency does not handle matters of safety, which is the responsibility of the Transportation Safety Board and Transport Canada.
And where Transport Canada is the primary source of public policy advice to the Minister of Transport, the Agency works at arm's length to regulate industry and to resolve disputes.
When it comes to rail transportation, the agency's mandate applies to railway companies under federal jurisdiction. There are currently 32 such active railways, including class 1s and short-line railways.
The agency plays an important role in helping to resolve disputes as well. We have expertise in alternative dispute resolution, such as mediation and arbitration. In our experience, these methods can be faster and less expensive, producing a resolution that benefits all sides.
Although the agency has a number of rail-related responsibilities, today I'd like to focus on four elements of our rail mandate that perhaps may be of most interest to this committee.
The first element relates to the certificate of fitness. If a railway company would like to construct or operate a freight or passenger railway under federal jurisdiction, they must apply to the agency for a certificate of fitness. The agency ensures that railway companies have the level of insurance that they need to begin to operate and to continue to operate in Canada.
The Safe and Accountable Rail Act requires appropriate levels of insurance coverage based on the type and amount of dangerous goods that railways carry each year. The agency is engaging currently with railway companies so that they can be prepared to meet the new insurance requirements once the act comes into effect. We are fully ready to administer these requirements to ensure that they maintain at all times the applicable minimum liability coverage requirements.
The Agency's second role is related to cost recovery for rail-related fires. Under the Railway Safety Act, provincial or municipal governments may apply to the Agency to recover costs reasonably incurred in responding to a fire when the applicant believes that the fire resulted from a railway company’s railway operations. To date, we have not received any applications under the fire provisions.
The third mandate is related to the relocation of railway lines or the rerouting of railway traffic in urban areas in situations where a railway company and the provincial or municipal government cannot agree. However, these powers may be used only when certain criteria are met, including a determination by the agency that any such relocation or rerouting would occur at no net cost to the railway company. Importantly, the agency has not been approached under this act since the 1980s.
The fourth rail-related mandate deals with railway crossings and cost apportionment.
The construction or reconstruction of a crossing can be negotiated between a railway company and other parties. If the parties cannot come to an agreement, the parties can ask the Agency to resolve the dispute. The Agency also has a role to play when parties cannot agree on how to apportion the costs of constructing, altering or operating a railway work. If the parties cannot agree on the allocation of costs, either party may refer the matter to the Agency, before, during or after construction or alteration of the railway work, to resolve the dispute.
As you can see, the agency plays a variety of roles within the rail transportation system. It's a mandate we take seriously and execute proudly every day on behalf of Canadians.
With that, Madam Chair, thank you.
We look forward to your questions.
I should clarify: I think it was in 1987.
This is conjecture, and I'm always hesitant to get into that realm, but I suspect that it has something to do with the financial implications, obviously.
One of the standards is that, effectively the railway has to be made whole, and it's pretty hard to arrive at that resolution, first and foremost. Obviously, we can't speak definitively as to why it hasn't been used, but I suspect that's probably it.
Thank you very much, Madam Chair, and members of the committee. I want to thank you for inviting the Transportation Safety Board of Canada to appear today.
I bring with me two colleagues who bring a wealth of experience. To my right is Mr. Jean Laporte, chief operating officer, and to my left is Mr. Kirby Jang, the director of rail and pipeline investigations.
Given the shorter period of time scheduled for today's appearance, we thought it would be more efficient to submit our original, longer, preliminary remarks that deal with who we are and what we do in advance. I hope that's been distributed.
What I'd like to do now is briefly outline some updates.
The most powerful tool that the Transportation Safety Board of Canada has to advance transportation safety is through our recommendations to regulators and the industry in significant cases where we've identified a serious systemic risk that is not being adequately mitigated.
These recommendations are our highest level of communication and they carry significant weight. Under the CTAISB Act, the relevant minister has 90 days to respond as to if and how the department intends to address it.
Since it was established in 1990, the Transportation Safety Board has published 144 recommendations to improve rail safety. The TSB has not lost sight of any of them. We assess the initial responses and follow up. We also re-assess every year until we feel enough progress has been made that the risk has either been eliminated or else substantially reduced.
It may take time, but over the years we have a good track record of success. Of these 144 rail recommendations, the responses to 126, or almost 88%, have been assessed by the board as being fully satisfactory.
We currently have 18 outstanding rail recommendations requiring action by the regulator and the industry. We've recently completed and published our annual reassessments of most of these. These touch on everything from fencing along railways to reduce opportunities for trespassing, to the implementation of physical defences to mitigate against human error and following signal indications, and, of course, those coming out of our Lac Mégantic investigation, to name a few.
However, sometimes it takes Transport Canada a very long time to implement our recommendations. For example, in 2001, the board issued a recommendation to Transport Canada to “expedite the promulgation of new grade crossing regulations”, something the department had already been working on for over 10 years at that point. It wasn't until late 2014 that the new grade crossing regulations were implemented.
That's why, a few years ago, the TSB produced a safety watchlist, highlighting those issue we feel pose the greatest risk to Canada' s transportation system.
Currently there are four rail issues on the TSB watch-list. These are railway crossing safety, the transportation of flammable liquids by rail, following railway signal indications, and on-board voice and video recorders.
There's also a fifth issue that affects not just rail, but also other transportation modes, including marine and aviation, and that is the issue of safety management and regulatory oversight.
Our last watch-list was published in 2014 and we'll be preparing an update before the end of 2016.
In closing, we at the TSB appreciate your focus on rail safety and appreciate being asked here today to speak with you. We hope that our presence will help inform your work and, in particular, we would respectfully suggest that there are two areas that this committee could address. First, is the need for an expedited regulatory process when it comes to implementing safety-related regulations. Second, it could follow up to ensure that Transport Canada is fully addressing the regulatory oversight issues that were raised by the Auditor General and by our own investigations, particularly in the aftermath of the Lac-Mégantic tragedy.
I'll now take questions.
In the air modes and marine modes of transportation, many operators are required to have on-board voice recordings. There's not yet a requirement for video recordings, but some operators are putting them in. That's not a requirement in the rail mode. There's no requirement for either voice or video, and the TSB has made recommendations in the past that both types of recordings be available.
From our perspective, it's absolutely essential to finding out what happened and why it happened. In some cases, we don't have a live crew. An example would be the VIA 92 derailment in Burlington, where the three crew members were all tragically killed. We did our best to identify why it happened, but without a crew and voice or video recordings to find out what was going on, it was very difficult for us.
So there's that aspect. It certainly has proven to be extremely beneficial for accident investigation. But beyond that, Madam Chair, we also believe that the use of voice and video recordings in all modes of transportation, and particularly in this case in rail, can go a long way to helping railway companies identify hazards in their operations and take steps before an accident occurs, provided it is used in the context of a proactive non-punitive safety management system.
In terms of your last question, I don't think we're in a position to address whether they have the resource or the expertise.
What I can tell you is that if there's an air accident, because that's really the only overlap with either of those agencies, we will more than likely do the investigation. In terms of those agencies, we will collaborate with any investigation that they may have ongoing for their own internal purposes, because they obviously want to be able to find out, to some extent, what went wrong. We will undertake that investigation. We'll collaborate with those agencies, but at the end of the day, it's our investigation.
In the case of a military accident, we don't get involved unless there is some civilian component.
It's very difficult to give a general answer to that question without looking at the specifics, because there are thousands of railway crossings in Canada.
Some of them, about a third of them, are controlled crossings with gates, bells, and whistles. Many of them are what we call “passive” crossings. I would really have to drill down, look at each one for the statistics, and see where those accidents occurred—whether they were in major municipalities or on rural roads—before I would generalize.
Railway crossing safety is something that we have identified on our watch-list. Originally, the issue was that there were no grade crossings regulations. There were guidelines out there for municipalities, road authorities, and railway companies to use. We were very pleased when Transport Canada implemented the new grade crossings regulations in 2014.
Over the next several years, under those regulations, all of the crossings need to be reassessed to make sure they meet the new grade crossings regulations and that they're as safe as they can be. Certainly, if there are issues there, we would hope that they would be addressed by the road authority, the railway, and Transport Canada, which oversees it.
Did you want to add anything, Kirby?
I'm not sure that the communities are happy to sit and wait for the response.
In your investigation into Lac-Mégantic, you identified an unbelievable list of violations by MMA, including runaway train, safety deficiencies in training, oversight, operational practices, lack of consultation with employees in doing risk assessments, problems managing equipment, problems with the remote control, issues with rules compliance, issues with fatigue management, and lack of investment in infrastructure and maintenance.
I'm wondering if you are finding a pattern of problems where Transport Canada allows exemptions that lead to incidents. This seems to be the case in Lac-Mégantic, where there was an exemption regarding having two employees on the line. Have you seen a pattern that you think would warrant looking into the power to grant exemptions?
When we look at the rail accidents overall, there were 1,200 in 2015, down 3% from the year before, and up 8% from the five-year average. Most of these accidents, or roughly 62%, are on non-main tracks. They're in yards, and they have a much lower risk than on main tracks where the speeds are higher and the consequences potentially more extensive.
While we're generally pleased with the progress that's been made on our recommendations, the fact is that five of our watch-list issues out of eight touch on rail safety. There are still a number of outstanding risks, notably with the transportation of flammable liquids, and we have at least four outstanding recommendations from Lac-Mégantic that would go a long way to reducing those risks. We have the issue of following signal indications, where we've had a number of accidents when a signal to slow down or stop was misperceived or misinterpreted, leading to a derailment or a collision. There's still quite a bit of work to be done there. We mentioned railway crossing safety, where there's still work to be done as well.
Those account for, I guess, the proportion of the accidents...outstanding. I certainly wouldn't want to give you the impression that we're sitting back in any way and saying that things are fine. There are still a number of issues that need to be addressed.
Yes. In fact, all of our watch-list issues are based on outstanding recommendations, investigation reports, and other types of safety communications such as safety advisory letters. A number of accidents have happened over the years. The last, most notable one was the VIA 92 derailment near Burlington, in which, we believe, the signals were misinterpreted or misperceived.
We've made two recommendations in the last ten years. One was to increase the number of backup safety defences to reduce the chance of a misperception of a signal. The railway industry did adopt some measures, but they were primarily administrative measures, new rules. That isn't sufficient.
After the Burlington accident, we made another recommendation, which was for physical fail-safe defences that will actually stop or slow the train if a locomotive engineer doesn't respond appropriately to a signal. These systems have existed for many years in the United States. The United States is also moving forward with what's called positive train control, which will have the same effect. We haven't moved forward with that in Canada, and that's why we've assessed Transport's response to that recommendation as being only partially satisfactory. Definitely, more needs to be done to slow or stop a train, to make sure it follows the signal indication and is not entirely dependant on a human.
My old insurance days suggest that what we're dealing with is exposure: more trains and longer trains create more opportunities for things to happen.
A theme that's been running through my mind as we've heard from the various witnesses is that there seems to be an imbalance between the safety management system approach and the regulatory approach to maintaining safety. We can look at something like operator fatigue. The management of that has been incorporated in safety management systems, and in fact relegated to collective bargaining in some cases. We heard from some of the bargaining units that they would like to see regulations come back to deal with that, because there are distortions that contribute to crew fatigue and therefore to the risk of accidents.
I use that as an example to ask whether, from your point of view, we have the right balance between safety management systems that rely on risk assessments, which you've already indicated could be shaky, and regulation that could be very prescriptive but could be prescriptive on the side of safety.
When safety management systems were implemented—and they've been implemented in rail, marine, and aviation in Canada—they were never ever intended to replace regulation. They were always intended to be an additional layer of oversight within a company because, at the end of the day, you can never have a regulation for every possible situation, and you can never have an inspector overseeing every possible action. At the end of the day, the companies must be responsible for identifying hazards and managing their operational risks, but you need a strong, effective regulator when a company can't do that or doesn't want to do that.
It's not a question of a safety management system or regulation; it's really how they work together. Ideally, a company has an effective way of managing its risks. The regulator is there to oversee and make sure that is doing it, that there is at least a common baseline of regulation that applies to everybody, and that they all work together.
With respect to fatigue in particular, we see fatigue as a hazard in any 24-7 transportation system. We always investigate for it. When we identify it and identify it as a contributing factor, we say that in our reports. There are fatigue regulations that apply to the rail industry. They may need to be revised and updated, but they do have some. At the end of the day, it's also up to companies and bargaining agents to work together and not to allow scheduling practices into collective agreements that are counterproductive from a human fatigue perspective.
Thank you, Madam Chair.
Thank you very much for being here. I have a lot of questions for you, but we don't have a lot of time, unfortunately. You can appreciate that, as the member for the Lac-Mégantic region, I have a lot to discuss with you.
First of all, I want to discuss credibility. I noted during your presentation that your organization's credibility is very important. In Lac-Mégantic, we are having trouble trusting all rail safety authorities.
Further to the analysis of the recommendations made with regard to the Lac-Mégantic tragedy, has the Transportation Safety Board considered reaching out to the community to report on the follow-up to the recommendations and the responses received?
Actually, there are four remaining recommendations relating to the Lac-Mégantic accident. I cannot say one is more important than the other.
First of all, tank cars transporting flammable liquids, such as crude oil, must be stronger. We know that regulations are in effect, but we are concerned about the timelines because we might have to wait until 2025 before all the deficient cars are withdrawn.
The second recommendation pertains to risk analysis. We are waiting to see if this will indeed be effective.
The third group of recommendations pertains to prevention and ways of preventing runaway cars.
The fourth recommendations pertains to Transport Canada's oversight.
I could not say that one recommendation is more important than another. They are all important since a range of measures is needed to reduce the risk of another accident like the one in Lac-Mégantic.
I will answer that one.
Protective direction 36, as you know, was recently issued. It brought a number of improvements that municipalities and railroads worked together on.
However, dangerous goods are assessed by the shipper, the person responsible for transporting the dangerous goods under the Transportation of Dangerous Goods Act and regulations. There are various tests and criteria to determine whether or not a particular cargo or goods are considered dangerous. There are nine classes of dangerous goods. It is up to the shipper to assess whether or not it meets the criteria for dangerous goods.
Once those criteria have been met and it is established that these are indeed dangerous goods, the shipper must determine the proper means of containment for transporting those dangerous goods, ensure proper awareness—that the proper placarding is placed on that means of containment—and ensure that the proper shipping documents are prepared.
In addition, certain dangerous goods, such as a number of flammable liquids, require an emergency response assistance plan.
So there is a whole process and a whole set of requirements under the act and the regulations that determine that.
Thanks. It's good to see you here again.
The Auditor General in his fall 2013 report and again this fall raised serious concerns about a wide range of failings in the department's inspection and enforcement regime, including inspection findings not being well or consistently documented, poor follow-up on inspections to verify compliance, failed enforcement action, lack of enforcement training, failed oversight to ensure effective enforcement, and no training in risk assessment.
This was repeated by the Transportation Safety Board, the rail workers, the inspectors, and communities who have submitted written briefs. A big concern across the board has been overreliance on paper audits instead of field inspections.
What is the department doing in response to all of these concerns?
There were a number of reports with different information in them that were all useful and valuable to improving our program. The Auditor General's report in fall 2013 focused on documentation, and they had other areas as well that were addressed.
Those were areas, as we were responding to the actual events in the tragic occurrence at Lac-Mégantic, that we could incorporate in our changes as we moved forward and looked at how to respond to those.
That was built upon by the reports that came out, both the interim recommendations and the final report, from the Transportation Safety Board. We have internal audits posted as well that I think you may be referring to, and those audits also go into some of those same areas.
We've taken a very holistic approach over the last two to three years to look at all of these items, in conjunction with looking at how the program itself can be improved, how training of our inspectors can be improved, and how the follow-up and documentation can be better addressed.
Some of these things are immediate fixes. Some of them are databases and better data coming in from railways, etc., that we can use for trend analysis. A series of elements has been put in place, and we have management action plans to address all of those elements, all of which are very well advanced. Most items are complete.
I'm not sure if that answers my question, but thank you.
I've been reviewing very closely all the regulations and legislation related to rail safety, and I have to say that it is among the strangest I've ever seen for the industrial sector.
There are two aspects to this, which a number of people have raised. They call it “regulatory capture”, and that is the introduction of industry manufacturing rules. It seems that a lot of the approach is not the government taking the role of developing the regulations and then inspecting them and enforcing them, but the companies manufacturing these rules and then seeking exemptions.
The last parliamentary committee recommended that Transport Canada publicly disclose all exemptions to safety regulations, including the department's justification.
Is the department now doing that?
I would say initially—and Ms. Diogo may want to add a comment—that one of the most critical elements for us to look at is the fact that we have a very new, very much more robust, more demanding, and more prescriptive safety management system that was established slightly over a year ago now. We're still in the process of full implementing it and then analyzing some of the elements that were added to the requirements. For example, there is the need for the company to look at the effectiveness of their own processes, etc.
For an assessment of how well the safety management system is working, we will be doing full audits, and we will be looking at those kinds of measures, comparing them, and then looking at the balance between prescriptive and/or performance-based regulations that set specific requirements, as well as these more general requirements that the company do things under their safety management system regulations.
There is probably going to be an ongoing balancing act to be done, because part of it goes to, as you said, what are the responsibilities that the railway company should do and, as has been pointed out by other committee members, certainly the responsibility of the department is to look at how well the railways are doing that.
From the safety management system audits that we do, we will likely see areas where most railway companies may be a little bit weak, and either it may be an area that needs amendment to the safety management system regulation if we find that, or it may be that there is a prescriptive type of “you must do X or you must do Y” that is needed from that.
Those are things that are in a continuing evolution, I believe.
It's one of those situations of asking for forgiveness versus asking for permission.
Thank you, Madam Chair.
Thank you for being here this afternoon, folks.
I have two quick questions. One is with respect to emergency planning in response, especially at the municipal level. As a former mayor for close to 14 years, I know we've had a few instances and therefore run-ins with Transport Canada with respect to our emergency planning process. By the way, they were always positive.
In this instance, especially with railway training, railway protocols, and things of that nature, has Transport Canada reached out to first responders at the local level, municipalities, etc, to be an integral part of their team? Have they shared their protocols with respect to emergency response, ongoing training, and being proactive throughout time so that it's happening before the fact versus reacting after the fact?
I would answer in a slightly different manner, if I may, in terms of the work that's been done in the emergency response task force that was established. It was led primarily on the transportation of dangerous goods, looking at some of those issues of the types of flammable liquids, the training first responders need, the kind of information they need, the kind of incident command centres needed, and the kind of instant command protocols, communication protocols, and what may be useful in these rather specialized subsets of emergency response.
That task force was set up with, I would venture to say, everyone who we could think of that had a role to play, who had an impact: railways, the emergency responders who are hired by shippers and others, the municipalities certainly, the firefighters, fire chief associations, aboriginal volunteer firefighter communities, and a raft of others. They worked for a year and a half on a set of recommendations to look very fulsomely at how the response system could be improved.
A number of those recommendations, about 12 or more, have already been implemented. There were about 33, and I think they'll end up at 40. We're taking a very serious look at trying to move those as quickly as we can.
I think there's a tremendous amount of work there that is bringing all the players in the response continuum together to really look at how this can be improved. I can give you a number of examples.