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Federal government’s latest moves on rail safety still leave major gaps – Published in the Montreal Gazette February 25, 2015 –

Last Friday afternoon (February 20), the transport minster Lisa Raitt announced the federal government’s latest responses to the July 2013 Lac-Megantic rail disaster in which 47 residents of the Quebec village died.

The federal government’s announcement consisted of three components: an expansion of the insurance requirements for railways hauling dangerous goods and the creation of a fund to clean-up crude oil rail accidents funded through a levy on rail shipments of crude; amendments to the Railway Safety Act to expand the Minister of Transport and her officials’ powers to issue orders to railway operators to ensure safety, and expand municipal access to information regarding railway safety; and revisions the Safety Management System regulation to require the appointment of executives within each railway responsible for safety management plan implementation. The revisions also require the protection of whistleblowers and promise better management of employee fatigue.

As with many of the government’s previous announcements in the aftermath of the Lac-Megantic tragedy, there may be less here than the minister’s fanfare might suggest. First and foremost the announcement makes it clear that the effectively self-regulatory safety management system (SMS) model adopted for rail safety at the beginning of the last decade remains the foundation of the federal government’s approach to protecting public safety in railway operations.

The SMS system allows railways to develop and oversee the implementation of their own safety systems and standards, subject to oversight by Transport Canada. Under the SMS system the Montreal, Maine and Atlantic (MMA) Railway, the operator of the train involved in the Lac-Megantic disaster, effectively approved its own shift to one-man operation of trains carrying crude oil.

Many observers have questioned the appropriateness the SMS model, where the railways effectively make their own decisions about the balance between economic efficiency and public safety, in the aftermath of the Lac-Megantic disaster and a string of other ‘near-miss’ accidents involving the movement of oil by rail in Canada. Even the Minister of Transport’s proposed new ‘order’ powers largely relate to being able to order railways to comply with safety requirements that they, rather than Transport Canada, have developed for themselves.

The new insurance requirements regarding to the movement of crude oil are welcome, but they are a long overdue response to the risks associated with the massive increase in the movement of crude oil by rail seen in North America over the past few years.

The proposed amendments to the Rail Safety Act may enable Transport Canada to set rules requiring the sharing of safety information with municipalities. However, the proposed legislation is silent on the issue of public access to information regarding the movement dangerous goods through communities. Even more importantly, the proposed amendments are silent on the issue of municipal and public access to the contents of railway safety management plans themselves, where the crucial choices between safety and efficiency are actually made.

Many larger questions about the Lac-Megantic disaster remain unanswered and unaddressed. The failure of North American railway regulators respond to the risks associated with the ‘crude to rail’ phenomena before a catastrophe occurred stands out as a stunning failure in public safety regulation. It is a failure that has never be adequately examined or explained.

While potentially useful, the federal government’s responses to the Lac-Megantic tragedy remain inadequate. This is in large part due to the fact that they are grounded in an incomplete understanding of the causes of the disaster. The Transportation Safety Board and others have done excellent work in bringing elements of the causes of the tragedy to light. However, the federal government’s steadfast refusal to establish a judicial inquiry into what is the worst rail disaster in Canada in more than a century, means that a complete picture of the factors contributing to disaster, and how similar events might be avoided in the future, has yet to be developed.