Transport Committee on March 21st, 2016

[Laureen Kinney]

Madam Chair, if I may, I think the design of the regime for railway safety has been reviewed, as have the two particular examples of 2013 and 2015 when Railway Safety Act amendments were proposed and made.

The regime was not addressed in terms of the breakdown of how rules operate in conjunction with regulations and standards, except in a few areas of how enforcement and compliance could be improved. At this point we are operating under the legislation that exists now, and I wouldn't be able to speculate any further than that.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Ms. Kinney.

Mr. Hardie, you have 10 minutes.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you, Madam Chair. Greetings to all.

We've had a situation over the last 10 years where there has been at least growing public discomfort, and maybe a lack of confidence, in the regulatory regimes with a feeling they've perhaps been diluted, weakened, or put aside in order to remove red tape and allow private operators to do what they do best, which involves making a profit for their shareholders, among other things.

Excuse me if my questions are a bit loaded, but I would like your thoughts or opinions. Are there regulatory gaps? Are there things that you see while sitting there overlooking that balance between allowing the operators to run successful operations and the interests of Canadians for safety? Are there regulatory gaps you can see that you would want a government to look into?

[Laureen Kinney]

Madam Chair, I'm not sure how far I can speculate on those kinds of broad questions. I can tell the committee the process of engaging Canadian government agencies, including Transport Canada, on the regulatory side in various initiatives—where we look at reducing red tape and regulatory coordination, and co-operation with the United States for example—is a process that bring us closely into the discussion of safety priorities, and what are the safety priorities. In all cases the safety priorities are our primary consideration. When you look at the mechanism of how things can be done, and when you look with a fresh eye, you do find areas where things can be streamlined or modified. Whether something in a regulation is a core element that speaks to safety, or it's an administrative process that may or may not be burdensome, those are analyses that are useful to do. We take part in that work on a regular basis.

In terms of where any kind of a regulatory safety issue is raised, or an issue that may be best dealt with by a regulation, it may come up through a variety of areas of findings, such as Transportation Safety Board reports, our own analysis, international incidents, work with the U.S., and others.

When such things happen, we look at the safety implications and look at what new regulations should come forward. I would refer to the point that I made a couple of times in my opening comments. These regimes need to be continuously improved, to be continuously monitored for their effectiveness, and to be updated as required.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Do you have anything on your list right now you think should be a focus of this committee in terms of regulations that may be missing, or are perhaps weaker than they should be?

[Laureen Kinney]

I think the issues that have been raised are the issues that have been talked about fairly commonly across the previous committee meetings. I leave that to the committee to further pursue, but as we noted one good example is the Transportation Safety Board's recommendation on voice and video recorders. That's an issue of some complexity, and we're working closely with the Transportation Safety Board on analyzing the problem and considering the options. When the study we're currently involved in is finished, then we can look at what might be appropriate for regulation.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

This may be more perception than fact, so feel free to straighten me out if I'm leading you down the wrong path.

It seems that short-line operations in Canada arise in part out of the fact that some of these operations were not economically profitable, or at least sustainable for the main-line railroads. We've created a class of railway operation in Canada that may be susceptible to weak economic performance and the risk, or at least the perception of a risk, that things like safety will be ignored because there's simply not the money to turn a profit and make it all work.

There was to have been an audit of the short-line railways completed in early 2015. Has that been completed, and if it has, what were the findings?

[Laureen Kinney]

Madam Chair, I'll give a general comment, if I may. I would suggest that different types of operating companies or various types of organizations have different challenges. A very large organization may be large, complex, and difficult to necessarily move quickly, and smaller operations have their own complexities, it's true. Some of them certainly have financial challenges, but of course, that applies to larger corporations in some cases as well.

In terms of the letter of safety advisory that was written by the Transportation Safety Board in regard to training of short-line railways, I'll ask Madam Brigitte Diogo to respond.

[Brigitte Diogo]

In response to the letter that we received from the Transportation Safety Board, all the short lines did submit to Transport Canada their training packages. The review of this information has been completed and in the new fiscal year, starting in April, where we conducted the audit of the safety management system, training will be one of the areas that we would continue to look at. But I would like to add that the qualification of railway employees is something that we monitor on an ongoing basis as part of our risk-based inspection to ensure that the companies remain in compliance with the regulations in the act. Part of that is really dependent on assessing whether the employees all qualify to the highest level to do the work that they are doing.

While we have initiated a specific initiative as a result of the TSB letter, it is really an area that we see as a key for us to follow up on an ongoing basis.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Ms. Diogo.

Mr. Sikand.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

I'm using Lac-Mégantic as an end point when I'm asking this question, so 2013.

In 2003, the work-rest rules for railways' operating employees were established with a requirement of fatigue management plans, and then that was updated and replaced in 2005. Then in 2008, Transport Canada established a working group to address fatigue, as well, and even brought in a university professor from Denver. That was again updated in 2011. Then Transport Canada's rail safety branch assessed the railway companies' implementation of these fatigue management plans and found that a lot of them did not meet the established criteria.

Why can't we put this to rest, the fatigue that's going on with the rail companies?

[Laureen Kinney]

Maybe I'll just start, Madam Chair, then ask Ms. Diogo if she has anything to add in more detail. Fundamentally this is an issue that is always of concern. It's again one of the key elements that you need to think about in the safety of any transportation system. Typically you will have evolutions of the thinking. You'll have evolutions of the requirements and you'll have evolutions of the regulations, and that is triggered by a whole variety of new research that comes along, events that occur in the world, etc. That's the case certainly in rail safety and that has been the case over the last years. It's the case in other modes as well.

I think that the work has continued to go on, and I believe that, in the new safety management system regulations, there is a requirement for fatigue management plans that's been updated from the lessons and the learnings that we've had over the years.

Have you got anything specific that would be helpful?

[Brigitte Diogo]

I would say that the issue of fatigue has been an area of continuing discussions. I'm not able to comment on the various reviews or updates you referred to, but in the new SMS regulations that came into effect on April 2015 have strengthened the requirement for railway companies to take into account signs of fatigue in scheduling their employees. We continue to look at that aspect as we start audits in April.

I should add that under the advisory council on railway safety, which includes railway companies, Transport Canada, and bargaining agents, there was a working group set up to look at the issue of fatigue and to bring forward recommendations to the minister. That working group has since been disbanded because the members of the working group could not agree on specific recommendations to be presented to the minister. The department is now taking a look at what is coming out of the audits, but we intend to engage with all the players in terms of how we'll move forward on this file.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Would it be possible to apply the Canadian air and marine fatigue guidelines to rail?

[Brigitte Diogo]

That's one of the options. All the options will be on the table as we discuss how to improve the management of fatigue in the railway industry. We will certainly be looking at how the issue has been addressed in other modes to inform our options.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you.

Ms. Watts.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Thank you, and my thanks to all of you for being here. I appreciate your reviewing the report on the transportation of dangerous goods.

The emergency response task force of July 2014 has 33 recommendations. I understand that you're going through this document and implementing those recommendations. Is this a living document as you go forward? I'm looking here at the training for first responders and what it entails. I expect that this would continue to move forward.

[Laureen Kinney]

The task force had a certain mandate and a certain period of operation. It has now had its last meeting. We expect to have something in the order of 40 recommendations provided by the task force. About a third of those recommendations have been implemented, and others are now being analyzed.

I should just flag, though, that many of these recommendations are intended for other jurisdictions, other areas of responsibility. Incident command systems of first responders, for example, is a responsibility of others, but Transport will work very proactively with others to help promote them. The task force and the recommendations are now at an end, and those recommendations will stand. We will pursue, to the degree that we can, the implementation of those recommendations and certainly be available to report on them.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Perfect. Thank you.

In looking at the documentation, the legislative framework and the enforcement and monitoring, in term of risk assessment.... I understand defining what that risk is. I mean, there are several risks on several fronts.

I'm sure that in any coastal community this occurs, where rail lines are built through flood plains where there's been an erosion of the foreshore along the ocean. In terms of all of those things—and looking at rising water levels, two metres—we know down the road there are going to be some significant issues. How are these issues assessed and identified? How will they be mitigated?

[Laureen Kinney]

In an overview, the specific requirements for risk assessments for key routes and trains, which carry certain numbers of dangerous goods, etc., are very detailed and specific in terms of the factors that need to be considered. Those include things like the route, the grade of the slope, and the types of ground area, whether or not, for example, the rail route passes over a body of water, a fragile environmental area, and/or perhaps the source of water for a community.

There are requirements for how municipalities, who may have their own concerns and issues, can feed those into the railway as part of their risk assessment. That's now laid out in the actual requirements for key trains and routes in the rules. That is an important feature of how that part works. Generally, in the same kind of approach, looking under the safety management systems in other areas that are not covered by the key trains and routes, there is a requirement to do risk assessments and the same kinds of factors should be taken into account.

Then it's up to the railway to look at how those work. What are the risks? How would they mitigate those? When we look at them as part of our safety management system audits and our other inspections for the rules, we'd be looking at the sufficiency of those and whether they've been adequately dealt with. If not, there are other tools to be looked at.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Is this under the total responsibility of the rail line, the rail provider?

[Laureen Kinney]

I would frame it as the initial responsibility of the operators who know their own particular operation, who know the loads that they carry, where their routing may be, the type of terrain, and what kinds of local risks there are along that terrain.

Then they get the feedback from municipalities along that route, for example, and the first responsibility is for the company to look at those questions and to look at the appropriate risk management approach. Then it is Transport Canada's responsibility to look at the sufficiency of that and Transport Canada can take action if more is required, but clearly, the initial responsibility is with the railway company.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

In terms of the rail lines coming up from the United States, how is that information gathered?

If it's a reporting out system, and I would assume that it is, you would get reports on the rail routes from the rail companies looking at whatever issues they are looking at, and you would have a look at that.

How does that function if it's from the United States?

[Laureen Kinney]

If a railway is operating in Canada, then it is under Transport Canada's jurisdiction and it is required to follow all of the rules, requirements, and regulations. They would be required to do all of these risk assessments. They would be applying those to their Canadian operations. We would carry out the regulation, inspection, oversight, and audit evaluation.