Province of Alberta. Submission to the Railway Safety Act Review Panel INTRODUCTION

Transcription

1 Province of Alberta Submission to the Railway Safety Act Review Panel INTRODUCTION For ease of reference, a significant portion of Alberta's concern is documented in the Environmental Protection Commission (EPC) report entitled "A Review of Alberta's Environmental and Emergency Response Capacity" following the Lake Wabamun derailment and spill. 1 THE RAILWAY SAFETY ACT REVIEW To set the framework, and drawing from the panel's guidance document: "The Railway Safety Act requires Transport Canada to promote and regulate the safety of railway operations by federally regulated railway companies. Transport Canada also oversees provincially regulated railway companies applying federal regulatory requirements (for example, when operating on a federally chartered host railway or subject to a federal-provincial agreement). Transport Canada also regulates certain activities of other relevant bodies, such as road authorities (which may include a municipality) and utility companies, to promote safe railway operations. The objectives of the RSA are to: promote and provide for the safety of the public and personnel, and the protection of property and the environment, in the operation of railways; encourage the collaboration and participation of interested parties in improving railway safety; recognize the responsibility of railway companies in ensuring the safety of their operations; and facilitate a modem, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety." The Panel has been charged with the following mandate: The four-member Advisory Panel will review and examine: 1. the efficiency and effectiveness of the legislative/regulatory framework established under the Railway Safety Act; 2. the provisions and operation ofthe Act; 3. the environmental concerns with respect to railway transportation and accidents; 4. the interface with non-railway users; and 5. related railway safety issues. " 1 "A Review of Alberta's Environmental and Emergency Response Capacity. Learning the Lessons and Building Change", Report of the Alberta Environmental Protection Commission, Alberta Environment, November, 2005

2 RAIL SAFETY RULE MAKING 1. Roles and Responsibilities It is interesting to note the use of the term "efficiency and effectiveness of the legislative / regulatory framework" in item 1 of the charge to the panel. Without a clear view of efficiency (for whom?) and effectiveness (in terms of what?) one could argue that the status quo is an ideal situation. To all intents and purposes, the current rail safety rule or regulatory development is a bilateral negotiation between the Railways (by way of the Railway Association of Canada and/or an individual proponent railway) and Transport Canada. Traditional parliamentary or regulatory oversight or multi-lateral public consultations are not necessarily encompassed within this process. This process can be effective and efficient for the proponents and Transport Canada, but does little to ensure the input of the provincial and territorial jurisdictions, or the public, is considered. It could be construed that the "management" of railway safety is effective, and efficient under the current approach. From Alberta's perspective, there are significant shifts occurring in public attitude towards government and governance. A paradigm shift is apparent in the external environment, and one which the railways and the regulators are only now beginning to grasp. With an increased knowledge base, and access to huge amounts of information, the public, along with environmental and other non-government organizations, is no longer satisfied with the notion that the government is "managing rail safety effectively and efficiently". This is particularly evident when it relates to their need for assurance that public safety, property and environmental protection are being addressed as a first priority in regulatory oversight of the railways. The need to assure the public that these essential safety elements are being addressed renders any "effective and efficient management of railway safety" by the railways and Transport Canada as weak, if not meaningless. Under the current framework, Alberta has little or no opportunity to influence RSA rules or regulations to address issues that concern Albertans. We are pressed to harmonize with a system that is structurally distant and exclusive, notwithstanding real long standing concerns that have arisen over time. It is when an incident occurs, or an issue arises, when the local authority or the provincial government truly finds out just how little influence they have over the turn of events, and just how great the public expectation is that the local or provincial government (and not the railway or federal government) will solve the problem. The Wabamun derailment and spill was a hard lesson for Alberta Environment, Alberta Infrastructure and Transportation and the Emergency Management Alberta in meeting public assurance expectations in a framework where virtually every critical element fell under federal jurisdiction. 2

3 The federal government, the provincial and territorial jurisdictions and the railways need to move away from managing "effectively and efficiently" to "assuring the public of safety with respect to every aspect of rail operations". There is a real need to transform the rule and regulatory making process into an open, transparent and consultative framework. This is the only way that we can ensure harmonization of requirements at the federal and provincial levels, and begin to assure the public that there is a collaborative framework of governance at all levels. There are sound models in place within Transport Canada. The Transport Dangerous Goods Directorate's practice of including all key stakeholders in regular discussions by way of the Minister's General Policy Advisory Council on Dangerous Goods, and the Federal- Provincial- Territorial Task Force on Dangerous Goods are excellent examples of a well-rounded, open and transparent governance approach. The term "environment" is loosely defined in the objectives of the Act, but from that point on there is no clear expectation of what the outcomes are in relation to environmental protection. Similarly, engineering standards and practices are referenced, but again these standards do not articulate clear expectations with respect to environmental considerations (particularly emergency situations that impact the environment and human health). The Act and associated regulations and guidelines must articulate clear environmental outcomes, as well as standards for planning and response to events that pose a threat to life, property and the environment. 2. Safety Manae:ement Systems In principle, safety management systems are an approach to achieving acceptable levels of safety for particular processes. Fundamentally the approach works well in closed systems with finite boundaries (such as a manufacturing facility, chemical plant etc.) in other words, controlled environments where deviations from the norm are more readily identified and easily corrected. Where the system is open and widespread, where oversight is sporadic and difficult, (such as in a railway operation), the safety management system has ingrained weaknesses. These weaknesses are exacerbated with increasing stresses placed on an infrastructure designed under a historically lower system load. For example, we are not convinced that the existing rail infrastructure (track, bridges, crossings etc) has sufficient design capacity to withstand a substantial increase in volume (number of trains), train length (now at 2-mile trains) and weight (load dynamics of the double stacked car). The safety management system specifies what is to be in place to "manage safety" in addition to the current rule or regulatory framework. These are outputs. What is missing is a clear, transparent statement of outcome. For example, a simple "reduce mainline derailments" target is a partial outcome, but a clearly visionary outcome is one which targets "railway operations that are safe, for the operators, the public and the 3

4 environment". Any railway safety system must look beyond the railway right of way, and address the safety of the public, threats to property and safety of the environment. The risk reduction strategies within the SMS must be strengthened, and subject to continuous review and improvement. These strategies must not just be targeted at internal occupational threats, but have to evolve to fully encompass mitigation and response strategies for public and environmental risks. It is essential that these strategies and plans be developed in consultation with all affected stakeholders, including communities, local and provincial authorities. If the SMS is to succeed as a valid safety assurance scheme in Canada, the current levels of governance, both by the railways and the regulator must be increased. The regulators must assume a greater degree of oversight and enforcement, including where appropriate, audit, inspection, orders and, where necessary, prosecution. The data on such action must be made available publicly, to begin to assure the public that governance and accountability are embedded in the Safety Management System for railway operations in Canada. 3. Incident statistics It is frustrating to see and hear the Railway Association of Canada and others point to the number of mainline derailments, using raw numbers of derailments and accidents as a measure of success. This only addresses the "probability" side ofthe risk equation. What is totally missing is any notion of addressing the consequence of each and everyone of these incidents. With the size of the average mainline train increasing vertically (double stacking) and horizontally (140 plus car trains) the impact of a mainline derailment or accident has increased substantially. The tendency to rate rail transport as "safer" than road transport completely ignores this consequence side of the risk equation. Consider that one derailment at Wabamun, with the spill of 750,000 litres of contaminant Bunker C Fuel Oil and the pole treating oil, was equivalent to the total loss of road cargo tanks at one place, at one time puts a very different perspective on that claim. Add to that the complexity of having to deal with increasing volumes of dangerous goods per train, and the potential for a public safety or environmental catastrophe is substantial. The Rail Safety Act must be amended to require mandatory reporting of not only the number of incidents, but the public and environmental consequences of the incidents as well. This data must be made available publicly. 4

5 4. The SMS Risk Assessment A concern for Alberta is the major shortcoming in the SMS for a risk assessment based on "where" - the place based risk assessment. This is an essential ingredient for operational and emergency planning. By developing a "one size fits all" emergency plan, operators fail to recognize that the same threat applied in different locations along the route will be substantially different, based on local vulnerabilities. The response plan to a 43-car Bunker C fuel oil spill will be radically different if the spill occurs in Edmonton, or along the side of a lake at Wabamun, or into a river at Cheakamus. The focus for risk mitigation strategies is on high population density regions - where speed reduction, routing, enhanced safety and response systems and oversight are applied. Missing is an assessment of the impact on water, air and land systems outside of these areas, but where an incident could have a significant impact on our ability to protect Albertans. The Safety Management System must be enhanced to include an evaluation of the place based risk assessment for the operation, including specific emergency plans for high-risk locations. This industry-sourced risk assessment must be wide ranging and have input from all parties, including local authorities, and provincial jurisdictions. To assure accountability, there must be evidence presented that the local authorities were consulted, and the regulator, Transport Canada, must be satisfied with the extent of the consultation. 5. Local Capability Assessment An added complexity to the risk assessment and the response strategies developed for these non-urban and remote areas, is an evaluation of the local response capability. This flexible response to high risk - low capability situation is not addressed in the SMS approach. 2 High Risk High Capability 3 Low Risk Low Capability Low Capability High 5

6 This vulnerability has been highlighted in some Transportation Safety Board reports for example, from the report on the derailment at Firdale, Manitoba in May 20022: Recommendation R04-03 That the Department of Transport, in consultation with other federal, provincial, and municipal agencies, implement consistent training requirements that ensure emergency first responders remain competent to respond to rail accidents involving dangerous goods. (R02W0063) While the provincial and municipal authorities wrestle with growth pressures, small communities and volunteers find their turnover rates and numbers severely affected by the departure of many of their ranks to the lure of high paying jobs in the energy and other sectors. These volunteer responders have basic skill sets, and with the constant movement of volunteers, there are high costs to equip and train these responders, let alone bring them up to the standard envisaged by the Transportation Safety Board. An added complexity is the fact that many of these volunteers may never respond to a railway incident, and the challenge to keep their skills honed is an added burden. Even with regular table top and other simulation exercises, the ability of the authorities to ensure peak performance from a volunteer response team is a significant challenge. Railway operators, provincial and municipal response planning personnel must work in a cooperative, coordinated, and collaborative atmosphere to put in place local response plans that are place and risk based, and not generic. Innovative solutions are required, and priorities need to be set, with the high risk -low capability locales a high priority. Any planning for these locations must be integrated into the local Municipal Emergency Plans, or a regional response plan. Risk mitigation actions must be communicated and coordinated with the local authority's efforts to minimise the risk to its citizens. Alberta is actively improving all facets ofthe provincial emergency response system as recommended by the Environmental Protection Commission report into the response to the Lake Wabamun derailment and spill. For example, the Alberta Environment Support and Emergency Response Team (ASERT) is undertaking environmental risk assessments across the province as recommended by the EPC. An important part of these assessments will be the ability to assess what risk treatments are in place. To do that ASERT needs to be able to involve all the players and be able to ask what assurance is being applied by regulators and industry. At this time, a close working relationship between operators and the local authorities would seem to be impossible, made worse by the railway - small community 2 Railway Investigation Report Number R02W Crossing Accident and Derailment - Canadian National Freight Train No. E , Mile Rivers Subdivision near Firdale, Manitoba, 02 May

7 relationships, many of which are adversarial and relate to day-to-day operations and a lack of communication between the two sides. RAIL OPERATIONS 6. Cooperation. Communication. Collaboration and Coordination. There is no doubt that the railways in Canada undertake many, varied activities to work with communities on issues related to their operations. The success of these efforts is debatable, and given the frequency with which the same issues are raised by local authorities and the public, little doubt remains that the operators have failed to win the confidence of the public. Incident notification and resvonse The failure on the part of operators to promptly notify local authorities or the province in the event of an incident is a particular issue. The practice of the railways to routinely fail to engage the local or provincial responders in the response, at times by way of a very adversarial approach, is alarming. There is some distinction for dangerous goods incidents and spills, because the reporting is mandated by the Transportation of Dangerous Goods Regulations, but even in these situations there are problems that set Alberta and the railways at odds over enforcement of the immediate reporting requirements. The notion of cooperation, communication, collaboration and coordination in most situations is a far cry from the approach that tends to prevail. This is a particular "point of pain" with smaller municipalities, with fewer resources, and greater vulnerability to a large-scale incident. There is a failure to engage vulnerable communities in a risk reduction / risk management program that focuses on high-risk scenarios. In addition, when it comes to the response priorities, local issues take a back seat to operator priorities to re-establish operations in the face of local priorities. An integrated operator/first responder/local jurisdiction incident response is a rare event in Alberta. The Railway Safety Act must require that operators notify local authorities immediately in the event of any incident that has the potential for, or results in, off right of way impacts, including blocked crossings remote from the incident site. Roles and responsibilities in the event of environmental emergencies and response and emergencies need to be clearly laid out so that local, provincial, and federal authorities understand each other's role in the event of these incidents, and appropriate preparedness and training at the respective levels can be developed. 7

8 Blocked crossing concerns A very common complaint to the provincial road authorities is that of blocked crossings, where railways are insensitive to local concerns with respect to traffic flow pattern disruption, commuter delays, and environmental impact from vehicle idling. The current 5-minute rule is impossible to enforce, and neither Transport Canada nor the railways respond effectively, if at all, to complaints from citizens. This is not just a concern for high volume urban crossings in Alberta. It is also a significant source of public complaint to the province from smaller communities, where the impact of the longer trains may well cut a community off from schools, etc. It is a particular concern when it comes to delays in emergency response and the ability of the community responders to reach an incident be it a medical emergency or other incident. Innovative solutions are called for, but in most cases, the operators simply do not respond to community concerns. Again, vulnerable Albertans are at the whim of the railway operating schedule. The 5-minute rule must be revised and creative solutions found for the public to be assured that community emergency response will not be compromised, and that appropriate steps can be taken to enforce the resultant solution should prolonged occupation of the crossing by an operator occur. Whistling Complaints over whistling and anti-whistling arrangements are a significant growth pressure symptom from growing communities that is cumbersome and lengthy to resolve. We are aware that work is being done to resolve concerns, but research programs into alternative solutions to active warning devices are slow to evolve and costly to implement. Many of the small but growing communities do not have the resources or the infrastructure to implement many of the solutions. There is a real need to identify and implement a more consultative and faster process to provide for adequate resolution to a whistling issue. Technical solutions must be identified that are within a local authority's resource capability, and responsibility for implementation and effective operation must be shared between operator and community. 7. Environmental accountability. The Lake Wabamun spill and the Chisholm fire highlight the fact that when an incident spills over from the right of way onto private or public land, the public, local authorities and the province bear the brunt of the potentially significant cost and environmental impact. Lengthy negotiations, as well as civil suits are the tools currently used to settle the issues. 8

9 The Railway Safety Act must provide for measures to deal with situations that migrate off the railway right of way, including response, recovery and reclamation. 8. New crossin2 standards for oublic/orivate crossin2s There are in excess of 3,000 railway crossings on local roads in the province and with the introduction of new crossing standards the cost impact to local municipalities will be significant. Road authorities and railway companies will bear the cost for initial safety assessments, upgrading costs and the added cost of periodic reassessments performed every five years. Transport Canada's Railway Crossing Improvement Program (RCIP) funds eighty (80%) of the capital cost of a crossing improvement project for existing federally regulated railway crossings. RCIP will not fund costs to meet the assessment requirements of the new regulations. We urge Transport Canada to share in the safety assessment and upgrade costs resulting from their new proposed regulations by way of an enhanced RCIP program. 9. Rail car stora2e issues Although progress has been made to resolve the safety issue raised by the Transportation Safety Board 3 specifically with respect to Transport Canada's Special Permit 3255, commonly referred to as the "48 hour rule" specific to a "delay in transit" situation, there are still concerns over the unresolved practice of medium to long-term storage of rail cars of all type. Responding to customer needs for "just in time" delivery of rail cars for either loading or unloading, has resulted in the strategic placement of these cars on sidings along the main track. This is a significant irritant for small municipalities along the main track, who find the old, now abandoned, grain sidings being used to store cars. In some cases, the cars are being stored prior to repairs, and the storage time could be months, other cases seasonal demand fluctuations result in 10 kilometres or more of cars stored in some isolated communities. Not only are there aesthetic and safety concerns for road traffic but where dangerous goods cars (full or empty) are stored, even for a relatively short time, other safety and security issues are prominent. There have been instances of vandalism, unlawful access and tampering with product valves, requiring a response, and other unsafe situations. This is a purely economic solution to an issue, with no regard to safety and security concerns where DG cars (full and empty) are stored pending onward shipment/loading. 3 Railway Investigation Report Number R99H0007, Derailment/Collision VIA Rail Canada Inc. Passenger Train No. 74 Mile 46.7, Canadian National Chatham Subdivision Thamesville, Ontario 23 April

10 Security precautions are absent, and in many cases these storage tracks are right within the community boundary, escalating the risk. The use of old grain sidings results in elevated risk to small communities which do not have the capability to effectively deal with incidents, and innovative and cooperative solutions are needed to effectively reduce the risk to Albertans. There is little enthusiasm from the operators to address this issue, however the risks to public safety are apparent, and dependent on the nature of the stored material, presents significant safety and security risks to the public. The storage of rail cars for extended periods poses not only a safety and security risk but an environmental risk. This has been a long standing issue for Alberta's environmental inspectors as these cars tend to be old, contaminated, and often leak substances that cause extensive contamination around these storage yards. Transport Canada and the operators, along with shippers must resolve the issue of medium to long-term storage of railcars on storage tracks. The resolution must recognise local concerns and road safety issues, as well as reduce the overall security risk from the storage. Rules and regulations around extended storage or railcars in old sidings must either be applied by the Transport Canada or Environment Canada, or the railway operators required to comply with Alberta's waste storage requirements. 10

11 SUMMARY OF RECOMMENDATIONS 1. Roles and Responsibilities 1.1 There is a real need to transform the rule and regulatory making process into an open, transparent and consultative framework. This is the only way that we can ensure harmonization of requirements at the federal and provincial levels, and begin to assure the public that there is a collaborative framework of governance at all levels. 1.2 The Act and associated regulations and guidelines must articulate clear environmental outcomes, as well as standards for planning and response to events that pose a threat to life, property and the environment. 2. Safety Mana2ement Systems 2.1 The risk reduction strategies within the SMS must be strengthened, and subject to continuous review and improvement. These strategies must not just be targeted at internal occupational threats, but have to evolve to fully encompass mitigation and response strategies for public and environmental risks. It is essential that these strategies and plans be developed in consultation with all affected stakeholders, including communities, local and provincial authorities. 2.2 The regulators must assume a greater degree of oversight and enforcement, including where appropriate, audit, inspection, orders and, where necessary, prosecution. 2.3 The data on such action must be made available publicly, to begin to assure the public that governance and accountability are embedded in the Safety Management System for railway operations in Canada. 3. Incident Statistics 3.1 The Rail Safety Act must be amended to require mandatory reporting of not only the number of incidents, but the public and environmental consequences of the incidents as well. This data must be made available publicly. 4. The SMS Risk Assessment 4.1 The Safety Management System must be enhanced to include an evaluation ofthe place based risk assessment for the operation, including specific emergency plans for high-risk locations. This industry-sourced risk assessment must be wide ranging and have input from all parties, including local authorities, and provincial jurisdictions. 4.2 To assure accountability, there must be evidence presented that the local authorities were consulted, and the regulator, Transport Canada, must be satisfied with the extent of the consultation. 11

12 5. Local Cauabilitv Assessment 5.1 Railway operators, provincial and municipal response planning personnel must work in a cooperative, coordinated, and collaborative atmosphere to put in place local response plans that are place and risk based, and not generic. 5.2 Innovative solutions are required, and priorities need to be set, with the high risklow capability locales a high priority. Any planning for these locations must be integrated into the local Municipal Emergency Plans, or a regional response plan. Risk mitigation actions must be communicated and coordinated with the local authority's efforts to minimise the risk to its citizens. 6. Cooueration. Communication. Collaboration and Coordination 6.1 Incident notification and response The Railway Safety Act must require that operators notify local authorities immediately in the event of any incident that has the potential for, or results in, off right of way impacts, including blocked crossings remote from the incident site. Roles and responsibilities in the event of environmental emergencies and response and emergencies need to be clearly laid out so that local, provincial, and federal authorities understand each other's role in the event of these incidents, and appropriate preparedness and training at the respective levels can be developed. 6.2 Blocked crossing concerns The 5-minute rule must be revised and solutions found for the public to be assured that community emergency response will not be compromised, and that appropriate steps can be taken to enforce the resultant solution should prolonged occupation of the crossing by an operator occur. 6.3 Whistling There is a real need to identify and implement a more consultative and faster process to provide for adequate resolution to a whistling issue. Technical solutions must be identified that are within a local authority's resource capability, and responsibility for implementation and effective operation must be shared between operator and community. 7. Environmental accountability 7.1 The Railway Safety Act must provide for measures to deal with situations that migrate off the railway right of way, including response, recovery and reclamation. 8. New crossin2 standards for uublic/urivate crossin2s 8.1 We urge Transport Canada to share in the safety assessment and upgrade costs resulting from their new proposed regulations by way of an enhanced RCIP program. 12

13 9. Rail car stora2e issues 9.1 Transport Canada and the operators, along with shippers must resolve the issue of medium to long-term storage of railcars on storage tracks. The resolution must recognise local concerns and road safety issues, as well as reduce the overall security risk from the storage. 9.2 Rules and regulations around extended storage or railcars in old sidings must either be applied by the Transport Canada or Environment Canada, or the railway operators required to comply with Alberta's waste storage requirements 13