Transport Committee on Feb. 26th, 2009

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number four. Pursuant to the order of reference of Friday, February 13, 2009, we are continuing our consideration of Bill C-9, An Act to amend the Transportation of Dangerous Goods Act, 1992.

Joining us today to make presentations and to take questions from the committee, from Teamsters Canada, we have Mr. Phil Benson, lobbyist; and Stéphane Lacroix, director of communications. From the Canadian Chemical Producers' Association, we have Louis Laferriere, director, technical affairs. And from the Canadian Trucking Alliance, we have Ron Lennox, vice-president, trade and security; and Barrie Montague, senior policy adviser.

We welcome you today and we appreciate your making the effort to be here and help us make good laws for Canadians.

I think we're prepared to go. Mr. Benson, if you are ready, I would ask you to start.

[Stéphane Lacroix, Director of Communications, Teamsters Canada]

Good afternoon. I am Stéphane Lacroix. I am the Director of Communications for Teamsters Canada.

Teamsters Canada is a labour organization with more than 125,000 members. It is affiliated with the International Brotherhood of Teamsters, which has 1,400,000 members across North America. We represent workers in most sectors of the economy: Transport (air, trucking, rail and shipping), retail, motion pictures, brewery and soft drinks, construction, dairy, graphic communications, warehousing and more.

As Canada's leading transportation union, Teamsters Canada participates in reviews and consultations, and the resulting legislation and regulatory proposals that result from those consultations. Teamsters Canada also participates in regulatory agency activities concerning transportation issues.

Teamsters Canada participated in the review process for Bill C-9. Teamsters Canada is also an observer to the Advisory Council to the Minister of Transportation on the Transportation of Dangerous Goods.

The advisory council is a collegial body where groups with many different viewpoints work together towards improving the safety and security of the transportation of dangerous goods.

Bill C-9 is the result of many hours of work by Transport Canada and the stakeholders in the industry.

[Phil Benson, Lobbyist, Teamsters Canada]

The bill deals broadly with two key areas, security and safety. Issues surrounding security have a wider context than would have been found several years ago. Canada has international responsibilities that demand that rigorous standards be established and met. Dealing with the requirements of our neighbour and largest trading partner, the United States, compounds the complexity of security requirements.

As a trading nation, we have no other option but to ensure that our transportation security is robust and accepted by our trading partners. As Canadians, we must also ensure that workers requiring security clearances are treated fairly and with sensitivity and that the regulatory framework respects that.

As for our charter rights and our collective bargaining and labour standards, we must also ensure that security clearances are universally applied with the same standards for all workers requiring security clearances. Teamsters Canada has fought for these principles for the past seven years. It has been a difficult fight, but we are starting to see light at the end of the tunnel.

Currently there are four main security clearance systems, either in place or proposed. The air model contains similar provisions to those contained in Bill C-9, without the express right of appeal if a clearance is rejected. The marine model is similar to that proposed in Bill C-9, though there have been concerns raised about that particular system as well. The air cargo security model leaves it to employers, and it is simply not robust enough for our trading partners and, in our opinion, violates charter and collective bargaining rights.

The free and secure trade card, better known as the FAST card, is part of a program designed to expedite handling of shipments between Canada and the United States. The FAST card leaves the security of Canadians in the hands of a foreign country and provides no appeal procedure; both factors violate Canadian charter and collective bargaining rights. For years the pretence was that it was voluntary, a similar claim to that of the air cargo security model. It is not voluntary if you lose your job for not complying. Forced consent is no consent.

The United States, however, recently demanded security clearance for truckers carrying dangerous goods—and the FAST card is the stop-gap. The FAST card is no longer voluntary. It appears that the government understands this issue and is dealing with it.

Bill C-9 deals with security clearance in a consistent manner and is consistent with Teamsters Canada's stated principles. It is our understanding that the transport security clearance will eventually be the model for all modes, that is, for all workers who require clearances.

We wish we could turn back the page of time to when such clearances were rarely needed. Given the harsh realities of our times, the best option is to have transport security clearances undertaken with sensitivity, and mindful of privacy rights, by a government agency with full review. If they do not fulfill that obligation, we are certain that redress will be swift by government and this House.

Safety is the main concern of Bill C-9, with the aim of avoiding problems and dealing with them when they occur. Teamsters Canada views this as both a public interest issue and one of the health and safety of workers. Truckers, locomotive engineers, maintenance of way employees, and warehouse workers are the first people impacted by the release of dangerous goods. They are the first responders.

Safety plans are meaningless without training. Response plans are meaningless without tracking of dangerous goods and planning for the inevitable accidents. Legislation and regulation are meaningless if they're not uniform in nature and are not enforced. Bill C-9 contains provisions that, if properly implemented, will make these amendments to the bill far from meaningless.

Teamsters Canada is also optimistic that we're finally turning the page on the so-called smart regulations built upon risk management, safety management, and the principle that government does not have to regulate or inspect because we can trust companies to do it right. The best example we found that shows where it has taken us is Mr. Greenspan's testimony before a Senate committee looking into the banking collapse in the U.S., where Mr. Greenspan pointed to his trust in robust risk management but did not fully account for the greed factor—oops.

The government has moved swiftly on the rail safety review. We recognize its willingness to place Teamsters Canada and other unions front and centre in the railway advisory council. Its commitment to rail safety was further evidenced by the action taken in the budget.

We hope that the government will deal with the issues and ongoing problems that have affected CN and CP for a great number of years, which could affect how first responders, locomotive engineers, and maintenance of way workers deal with railway derailments. Our railway running trade members continue to complain about inaccurate train documentation related to the number of cars in their trains. Our members inform us that trains are still leaving terminals with missing or extra cars compared with those listed in the train journal, which is basically the train manifest. This could lead to a number of problems, the worst being a dangerous car leaking at a derailment site and train employees and emergency first responders not being aware of the existence of dangerous goods in a car.

Transport Canada is aware of this and could expand on this problem before the committee.

The government also ensured that there were provisions in the amendments to the Aeronautics Act--which the previous Parliament dealt with before the House--that responsibility for the safety of the sector rested with this government and Parliament.

Teamsters Canada suggests one amendment to the bill. It is the inclusion of a provision in the proposed amendments to the Aeronautics Act, which the transport committee dealt with last year, to allow this committee and the standing committee in the other House to review regulations made under the Transportation of Dangerous Goods Act. The final responsibility for the safety and security of the public and workers rests not with companies, industry, regulatory agencies, advisory councils, or bureaucrats; it rests with the government and our elected officials.

Thank you very much. We appreciate any questions you may ask us.

[The Chair, Conservative, Merv Tweed]

Thank you.

We'll now go to Mr. Laferriere for seven minutes.

[Louis Laferriere, Director, Technical Affairs, Canadian Chemical Producers' Association]

I'd like to talk about who the CCPA is, our Responsible Care program, and why we support the proposed amendments.

CCPA represents over 50 chemical and resin manufacturing companies in Canada, as well as nine Responsible Care partners, with $26 billion in revenues. Three-quarters of our production is shipped to the United States or offshore markets; therefore we need to rely upon safe and efficient transportation to get to those markets.

Since 1985, CCPA has made it a condition of membership that all members sign on to what is called Responsible Care. Responsible Care is our commitment to sustain ability for improved health, safety, environmental performance, and social responsibility. There's an ethic with six codes that apply against the total life cycle of chemical management. All of our companies and partners are verified against these codes by external parties.

Of particular interest is the transportation code of practice, where we ask all of our members to select the safest mode--road, rail, air, or marine--routes, and carriers; to have immediate emergency response capability; to ensure the security of their shipments; and to inform and train communities along those transportation corridors.

What's our legacy with the transportation of dangerous goods? In 1970 the CCPA established a national emergency telephone system that eventually led to the creation of CANUTEC, established by Transport Canada in 1982. In 1983, our second iteration of this program established an on-scene response program across Canada. This supported the then-developing ERAP concept under the TDG Act and regulations. In fact, CCPA's TEAP program was the first one ERP-approved in 1990. We are now going through our third iteration, based upon what we know and see in the future for transportation of dangerous goods regulations and other commodities.

All of our members belong to this. We require that we have 24-hour, seven-day-a-week technical advisers to attend incident scenes. We now cover not only dangerous goods but non-dangerous goods and environmentally sensitive materials. We assess and register all of our responders. We track on-scene performance, and we have cohorts in this endeavour. The Canadian Association of Chemical Distributors and the Railway Association of Canada are fully on board with us.

Why do we support Bill C-9? A few years back, the collective industry formally asked Transport Canada to have made-in-Canada TDG security legislation, as otherwise we were forced to follow the U.S.A. requirements. There was a letter sent from the TDG advisory council to the Minister of Transport at the time, requesting action in this regard. I've left copies of this letter with the clerk.

Transport Canada wanted to act, and we had no objection to using the ERAPs for security purposes, but unfortunately for industry we found out that security was not covered in the then TDG Act, and amendments would be required. We understood that and fully participated in all consultations. When the act was finally released for proposed amendments last May, we were relieved to see it, but then we were disappointed when Parliament prorogued for the election.

It's now back, and we fully support it because it provides Canadian-based security legislation and clarifies that the TDG Act and regulations are a federal government mandate. It provides the requested protection we need when we're directed to respond to a CBRN or TDG security-type incident, because currently our insurance policies do not cover acts of terrorism, war, or anything else. We would be left on our own, which is a pretty scary thought for some of our people, when we want to do the good and right thing.

We will be looking at this in the future with other trade associations.

I thank you for your time.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Now we'll hear from the Canadian Trucking Alliance.

Mr. Montague.

[Barrie Montague, Senior Policy Advisor, Canadian Trucking Alliance]

Good afternoon. Thank you for the invitation to appear before the committee today.

My name is Barrie Montague, and I'm responsible for matters relating to the transportation of dangerous goods at the Canadian Trucking Alliance. With me is Ron Lennox, the CTA vice-president who has worked on security files at the alliance for a number of years.

At the outset I should tell you that the Canadian Trucking Alliance is a federation of Canada's provincial trucking associations. We have offices in Ottawa, Vancouver, Calgary, Regina, Winnipeg, Toronto, Montreal, and Moncton. The CTA represents the industry's viewpoint on national and international policy and regulatory and legislative issues that affect trucking. We represent a broad cross-section of the industry--some 4,500 carriers, owner-operators, and industry suppliers--and our industry employs about 150,000 Canadians.

The trucking industry is very much involved in the movement of dangerous goods, both within Canada and across the border. The majority of individual shipments of dangerous goods are moved by road, although more dangerous goods by weight are moved by the other modes--rail and pipeline. The transportation industry is ultimately responsible for ensuring that before any dangerous goods are shipped they are being shipped in accordance with the regulations.

The CTA understands that the existing Transportation of Dangerous Goods Act was written before the events of 9/11. It does not give Transport Canada the powers it feels it needs to be able to properly address the potential threats associated with the movement of dangerous goods.

From our perspective, some of the proposed amendments can be regarded as technical in providing clarification to the existing act, most of which will not directly affect the carriers--for example, clarifying the definition of an importer of dangerous goods, enabling an inspector to inspect any place where means of containment are being manufactured, allowing the emergency response assistance plan to respond to a terrorist threat, and ensuring that there is uniform application throughout Canada of the dangerous goods regulations. There have been instances where the application of the federal law has been questioned in some provinces.

However, there are two specific amendments that will have a direct impact on motor carriers: the need for transportation security clearances, as outlined in proposed section 5.2; and the requirements for security plans and security training as outlined in proposed section 7.3. The CTA is also interested in the regulation-making powers found in proposed section 27 to require the tracking of dangerous goods during transport.

While CTA supports security measures, particularly with respect to transporting dangerous goods, our overriding message is that the regulations in all three areas outlined above must not create further duplication, overlap, and cost for motor carriers that are already complying with security regulations adopted by various departments and agencies in both Canada and the U.S.

Let's first look at the security clearances. Somewhere in the order of 70,000 Canadian truck drivers have already been security screened under the free and secure trade program or, as it's commonly called, FAST. Others who are required to access secure areas within Canadian ports have undergone a Transport Canada-administered transportation security clearance. Canadian drivers who operate at U.S. ports are also required to obtain something called a transportation worker's identity credential, or TWIC. While we are not opposed in principle to background checks for drivers moving dangerous goods, at least those for which an emergency response assistance plan is required, we would strongly caution against the establishment of a separate and costly new process. Although 70,000 Canadian truckers have already obtained security clearance, there are many more who will now require such clearance, many of whom may be in remote parts of the country. It is, therefore, important that whatever clearance system is finally adopted, it must be readily accessible to all Canadians, not just those living near large communities or near the border.

In terms of introducing additional requirements for security plans and training, the information we require needs to be clearly laid out so there is no confusion as to what information carriers need to provide government. We've had experiences of it not being clear with the U.S. situation, with what is required in their regulation. The CTA is also mindful that security plans and training are already required under Canada's partners in protection program and the customs trade partnership against terrorism, commonly known as C-TPAT, in the U.S.

The U.S. is currently proposing to amend its regulations so that not all movement of dangerous goods will require a carrier to have a security plan. The CTA encourages Transport Canada to harmonize its requirements with those of the U.S. and to accept those plans that have already been approved under C-TPAT. New requirements are also coming out of Transport Canada's security plans and training for carriers moving cargo that will be subsequently loaded onto passenger aircraft.

Again, CTA does not dispute the importance of advance security, but we do challenge the notion that the country will somehow be more secure if a carrier has two or three, or maybe even four, security plans instead of just one and that a driver needs to be trained multiple times depending on what particular commodity he's hauling or where he's going.

An amendment proposed in Bill C-9 contains another proposal that could have serious implication for carriers. The amendment allows for the introduction of regulations requiring that dangerous goods be tracked during transportation. Again, this was similar to a proposal that had been put forward in the U.S. many years ago and had been demonstrated to be completely unworkable, particularly if applied to the movement of all dangerous goods.

The regulations already contained in the TDG Act require that certain dangerous goods, when shipped in specific quantities, have to be accompanied by an emergency response assistance plan. CTA would recommend that any tracking requirements put forward should apply only to shipments that already require such a plan, in order to ensure that only the most vulnerable or potentially harmful shipments are tracked. We would also suggest that regulations not be prescriptive with respect to any technology that's developed. It should be left to the carriers to determine what works best for them from an operational standpoint.

We appreciate the opportunity to appear before the committee today and would be pleased to respond to any questions you may have.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chairman.

I would like to welcome and thank all the panel members who have come out to make these presentations.

My very first question to all of you is, were your organizations adequately consulted by the government in the design of Bill C-9?

I'll start with the teamsters.

[Phil Benson]

Would you repeat that, please, Mr. Dhaliwal?

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Did the government adequately consult with you when they brought in the design of Bill C-9?

[Phil Benson]

As we said in our presentation, we participated fully through the entire consultation process. We're a member—basically a member-observer—at the advisory council to the minister on the Transportation of Dangerous Goods Act. Yes, we were fully consulted throughout.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

And did you feel that you were consulted?

[Barrie Montague]

I agree. We're all on the same committee.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Okay.

Are the restrictions in Bill C-9 comparable with the approach that your peers work under in other countries? You were saying before that you had to go to a U.S.-type model. Are these pretty well comparable now?

[Louis Laferriere]

The model that the U.S. has is delineated with all the regulations about the security checks. We haven't seen that in the act yet, but overall, the enabling of the act is the same as what I've seen in the States.

As to the basis of requiring security clearances, yes, but we haven't seen the details yet in Canada.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you.

Mr. Benson, what are the problems with the marine model of security clearance, and how can they be avoided in future systems?

[Phil Benson]

I don't like talking about security issues too much in a public forum, but basically, some of the questions they ask become perhaps a little intrusive. The model itself is fine and seems to work well, but some of the questions lacked some sensitivity and were a tad overbearing. It's more an issue of whether questions you ask of somebody who's giving up their privacy rights and their charter rights to participate, to go to work, are fully sensitive. We can talk about that perhaps at other times, but overall, the model is the one we prefer.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Again, to the teamsters, when your members go through the certification—the one you have to transport dangerous materials now—would the requirements to get security clearance be time-consuming or obstructive for them, or would they represent a substantial new cost when they go through the whole process?

[Phil Benson]

The employers are paying for the ones we've dealt with. I hate to relate it to something like a very enhanced passport application. People slam me for that, saying that's too simple, and it is. In one particular field, I think over 1,000 members ran through the program, with three kick-outs. At the end of the day, there were just two rejections.

Just so we understand, in the air world they've been doing this for years. Tens and tens of thousands of people in the air world have to go through security clearances now. At least they're dealt with in Canada. We have tens of thousands of truckers who have to give their information to the United States, to which our Privacy Act does not apply, to which our constitutional rights do not apply—to which a right of appeal applies.

We have much more faith in the Canadian government, in you as parliamentarians, to review those things than we do in the Homeland Security in the United States. I'm not slamming our good friends in America at all, but we have much more faith that you will deal with it in a much more appropriate light.

For instance, if there are sensitive questions raised, we know we can come here and talk to you about them, but we know we can't go and talk to Homeland Security and have any redress. We trust our courts better than we trust Homeland Security at the border.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

In Bill C-9, new powers will be given to the minister, such as powers to issue interim orders. Are your organizations comfortable with those kinds of powers given to the minister?

[Ron Lennox, Vice-President, Trade and Security, Canadian Trucking Alliance]

We don't have any particular problem with that. I certainly read what's in the bill, and it seems to me that those would only be issued in what appears to me to be very urgent and sensitive situations, and there would be a review process. So that's not an overriding concern that we have with this particular bill.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Mr. Laferriere.

[Louis Laferriere]

I echo that. We don't have any concern there.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Mr. Benson.