Notes for Remarks: Presentation to the 28th Annual Transportation Conference
Burlington, Ontario
October 8, 2014
Mark Winfield
York University
Introduction
I would like to start by thanking the organizers, particularly Richard Lande, for their invitation to speak at this conference.
I must start by emphasizing that I am not a technical expert on rail safety or operations. Rather I come at this topic as a student of regulatory models and regimes, particularly role of ‘smart’ regulation and ‘new public management’ models in environment, public health and public safety regulation. I regard the Safety Management System (SMS) employed by Transport Canada in the area of railway safety as a prominent example of this type of regime.
I am very much speaking in the aftermath of the Transportation Safety Board’s (TSB) report on the Lac-Mégantic disaster. As would be expected the TSB did an excellent job of investigating the technical causes of the accident. The Board also addressed some of the regulatory failures on Transport Canada’s part at an operational level. However the TSB did not probe deeper in terms of the underlying regulatory model being employed by transport Canada in the area of railway safety.
Instead the Board took an approach very much like that which I saw when working in the Office of the Auditor General of Canada, now more than a decade ago. The board looked at the management of the implementation of the existing regulatory regime, but did not ask questions about whether there were flaws with the underlying regulatory model. This is particularly surprising given the scale and consequences of the failures in the Lac-Mégantic case.
As a result, the TSB’s report left a number of very important questions on the table. Chief among these is the issue of how safety regulators on both sides of border failed to respond to major shift in nature of cargos on the rails flowing from the oil-to-rail phenomena.
Substantial changes to the regulation of the transportation of dangerous goods were made by Transport Canada following the Lac-Mégantic disaster. These have included a phase-out of DOT-III tank cars, enhanced emergency planning around the transportation of dangerous goods and revised hazard classifications of Bakken shale oil. But the question remains why did 47 completely innocent people have to die to prompt these changes when many of the problems, such as the DOT-111 issue, were already well known?
There is anecdotal evidence of some awareness within oil/refining industry and US regulators of the potential risks associated with the shipment of Bakken Shale Oil by rail. However, there seems to have been no systemic or policy level response on the part of safety regulators to the enormous shift in the nature of the cargos being carried on the North American railway system as a result of the oil-to-rail phenomena. There is no evidence potential risks associated with this shift were assessed in any systemic way. Instead, observers are left with two equally disturbing possibilities: 1) regulators failed to identify the risks associated with the shift; or 2) the risks were identified but regulators failed to act until disaster struck.
Lack-Meganic also raises a series of larger question about the SMS model employed by Transport Canada. The TSB clearly identifies major failures in the implementation of the SMS model in the Lac-Mégantic case. While the Montreal, Maine and Atlantic (MMA) Railway, the operator of the train involved in the disaster, developed a safety management plan consistent with the requirements of the SMS model, it seems to have done nothing to implement that plan for more than a decade. That situation was apparently well known to Transport Canada.
The railway’s behaviour begs the question of the appropriateness of the SMS regulatory model for marginal short-line operators like the MMA. Small operators may be able to an hire a consultant to develop a safety plan, but may lack the financial and personnel capacity and expertise to actually implement it. The model effectively put the operator, who was under strong pressure to minimize costs, in a position to make its own decisions about the appropriate balance between risks, costs, and public safety in its operations. Transport Canada’s infamous non-approval of the MMA’s shift to one-man operation highlights this point.
The Lac-Mégantic disaster has invited even larger questions about balance between the interests of the public and operators in safety in the SMS model. The model effectively shifts the location of decision-making authority around this balance from the regulators to the operators. The situation has led to widespread expressions of concerns on part of the public, municipalities, the media and parliamentarians about the balance being struck in the result.
At an operational level, the lack of transparency regarding the contents of safety management plans, were the specific choices about the balance between safety and efficiency are being made, presents a serious problem. The absence of public access to the plans presents fundamental challenges in terms of accountability on part of the regulator and operators for the choices being made within the plans.
With respect to enforcement, the systemic failures on Transport Canada’s part identified by the TSB in the Lac-Mégantic case invite larger questions about the department’s effectiveness as a safety regulator. Indeed the situation begins to look and smell like a case of regulatory capture, institutionalized through the SMS system.
Issues continue to be raised by municipalities, the media and members of the around public access to information regarding the identities and quantities of dangerous goods moving through communities.
There are reasonable security arguments for not providing information regarding the specific materials being carried on specific trains at specific locations in real time. However the security argument doesn’t hold up well beyond that level. There is no reason why cumulative data on the identify and amounts of dangerous goods moving through communities can’t be made public on a regular basis.
The reluctance of the railways to release this data may have far more to do with concerns over commercial competitive interests than security. The issue of not wanting to invite the sorts of questions from municipalities and the public that such information would prompt is likely a major factor as well. These issue again go to the larger question of the balance being struck between safety and efficiency in the current regulatory regime.
Conclusions
In the end, the TSB report provided only partial answers to the questions of the why the Lac-Mégantic tragedy happened, and how can similar disasters prevented. The situation flows in part from limitations to the board’s mandate, and its ultimate status as part of Transport Canada. The final word on the disaster remains to be given.
For my part, I have continued to argue for a full judicial inquiry into the disaster. I see two major arguments for an inquiry, one human and the other policy-related.
In human terms, an inquiry would represent an acknowledgement of the significance of the events at Lac-Mégantic, particularly from the perspective of the community. This is especially important given that federal government, for its part, has never acknowledged any measure of responsibility for the disaster, despite the obvious and serious failures on the part of Transport Canada that contributed to it. As I learned through my involvement as an expert witness and researcher for the Walkerton Inquiry, now more than a decade ago, an inquiry can play a major part in the healing process for the victims of the disaster.
In policy terms, a judicial inquiry is the only mechanism available that is able to connect all of the elements contributing to the tragedy. So far we have been presented with fragments of the story, principally from the TSB and the media (specifically Radio-Canada, the Globe and Mail and Toronto Star), as well as from the railway unions and the Centre for Policy Alternatives, but no complete picture. I have argued in other forums that this is a deliberate strategy on the part of the federal government to mask the full scope and scale of its failures contributing to the disaster.
An inquiry is the only mechanism capable of investigating the larger questions about the nature and causes of the systemic failures that led to the disaster. It is the only mechanism through which the principals in the events at Lac-Mégantic, like MMA owner Ed Burkhardt and engineer Tom Harding would have to speak on the record in terms of their roles. And it is the only mechanism that can ask whether deeper changes in our approach to public safety regulation are needed. So far, those questions remain on the table.