Chapter 8: Environmental Protection and Response

Protection of the environment was introduced as an objective of the Railway Safety Act at the time of the 1999 amendments. Section 3 of the Act now refers to "… protection of property and the environment, in the operation of railways" as an underlying principle. Despite the addition of this environmental objective, railway accidents that have a serious effect on the environment continue to occur. Such accidents attract a great deal of attention when lives and property are put at risk, and when natural habitat is destroyed. It is clear that the public expects the government to act to protect the environment. It was also clear from our consultations that much of the public concern expressed about railway accidents relates to the damage caused to the environment by products spilled as a result of derailments.

The Panel is very concerned about railway accidents and their impact on the environment, especially those involving commodities that can be severely harmful to populations that straddle railway lines across the country. It is important for Transport Canada to fulfill the environmental objective set out in the Act and to hold the railway industry accountable for its environmental performance. In this respect, it is evident that the authority granted to the department has not been fully applied. In our opinion, Transport Canada falls short of embracing its full environmental oversight responsibilities with respect to railway safety.

At the same time, the railway industry needs to build on its efforts beyond preparing for, and responding to, railway accident spills, and adopt a broader environmental and sustainable transportation approach. While we are confident that implementing the recommendations contained in this report will lead to a safer railway transportation system, there remains an obligation on the part of industry and the regulator to ensure railways are performing in an environmentally responsible manner in all aspects of their operations.

8.1 Environmental Legislation

The framework of environment-related legislation governing the railway industry is shared among federal authorities, mainly Environment Canada and Transport Canada, and with provincial ministries of the environment. Within this framework, numerous pieces of environmental legislation focus on protecting air, water, soil, wildlife, and, of course, the public interest. Generally speaking, Environment Canada has jurisdiction over spills on railway rights-of-way that are federally regulated and the provinces have jurisdiction over materials that end up on provincial lands.

Transport Canada maintains the RSA for safe railway operations and legislation covering the transportation of dangerous goods.

8.1.1 Transport Canada

The movement of certain materials, ranging from chemicals to manufactured goods, can pose a threat if such goods are not handled properly and safely. The transportation of such products, whether by rail, air, water or road, is regulated under the Transportation of Dangerous Goods Act (TDG Act) and its regulations. In addition to the federal statute, each province and territory has enacted legislation to regulate the transportation of dangerous goods. While the jurisdictional coverage varies, the intent is consistent and each piece of legislation adopts the TDG regulations made under the federal statute. While one might expect problems with overlapping roles and responsibilities, in fact, "at a federal-provincial level, there seems to be little ambiguity or dissent over respective roles and the two branches of government appear to have achieved an appropriate and constructive working relationship."1

The classification of dangerous goods is dealt with in the TDG Regulations. The products fall into one of nine classes and each class is further broken down into divisions. There may be references to the flashpoint2 of flammable liquids, the sensitivity of explosives or the danger associated with compressed gases. The regulations include requirements for carrying documentation and also prescribe labels and placards for each classification of dangerous good. Such measures are intended to inform handlers and accident responders so that they may take the necessary precautions. The regulations also discuss requirements for emergency response assistance plans (ERAPs), training, means of containment, and rail-specific requirements.

As one would expect, not all commodities fall under the TDG Act. When it comes to their handling and transportation, there are many unregulated goods (those not covered under the TDG Act). Unregulated goods not requiring commodityspecific response plans or special preparedness measures can include such things as sulphur pellets, coal, potash, canola oil, lubricating oils, latex paints, and higher flashpoint solvents and hydrocarbons such as Varsol, and unheated Bunker C fuel. As we discuss later in this chapter, these unregulated goods can pose a significant environmental and human health threat if spilled in sufficient quantity and/or in an ecologically sensitive area. For the purposes of this report, we will refer to these unregulated goods as environmentally hazardous goods.3

The Railway Safety Act has as its general purpose the safe operation of railways, and is intended to protect people, property and the environment. In support of its environmental objective, the Act contains a number of provisions specifically dealing with this topic. Section 47.1(2) authorizes the Governor in Council to make regulations restricting or otherwise governing the release of pollutants into the environment from the operation of railway equipment. Despite having this regulatory authority, no attendant regulations have been developed and implemented.

The RSA also makes provision for regulations relating to the removal of trees, brush and weeds, and the use of alternatives to chemical pesticides, under section 24. Stemming from this provision, the Rules Respecting Track Safety contain a few references to controlling (i.e., removing) vegetation to improve visibility and reduce the risk of brush fires. In the Rules for the Control and Prevention of Fires on Railway Rights-of-Way, procedures are outlined addressing responsibilities with respect to the prevention of fires, as well as the control of fires that may be started along railway rights-of-way. In terms of noise pollution, section 23.1 of the Act deals with the use of whistles in municipalities – a topic that was discussed in Chapter 7.

Transport Canada's stated mission is to serve the public interest through the promotion of a safe and secure, efficient, and environmentally responsible transportation system in Canada. On the basis of our work, we find that protection of the environment, as set out in the RSA in 1999, requires more attention than it has received from Transport Canada.

8.1.2 Environment Canada

Environment Canada is responsible for the federal government's portfolio of environmental legislation dealing with such things as national standards, control of toxic substances, interprovincial matters and international treaties. The Canadian Environmental Protection Act (CEPA), the Canada Water Act and the Species at Risk Act are but a few of the pieces of legislation that contribute to the mandate of preserving and enhancing the quality of the natural environment, conserving and protecting Canada's water resources, and environmental change.

Environment Canada has a lead role for land-based pollution on federal lands under CEPA, but puts the onus on those responsible for the pollution to act. The Act states that if a person releases a regulated toxic substance into the environment, or owns the substance, this person must take all reasonable emergency measures to remedy any dangerous condition or reduce or mitigate any danger resulting from the release. While one would expect that environmental oversight of railway property, as federal lands, comes under the jurisdiction of Environment Canada, in reality, there is a degree of ambiguity since the day-to-day operations of railways fall under Transport Canada and the RSA. For large spills, Environment Canada will be on site. Even small spills of dangerous or environmentally hazardous goods in rail yards, however, can build up over time and contaminate the soil. It appears little is being done by either Environment Canada or Transport Canada to monitor or control this situation.

An example of the shared environmental mandate between Environment Canada and Transport Canada is the recent renewal of the memorandum of understanding (MOU) involving the two departments and the Railway Association of Canada on the voluntary control of air emissions from locomotives. The MOU illustrates that Transport Canada is slowly moving on its environmental responsibility through this voluntary approach, even though section 47.1(2) of the RSA (regulating the release of pollutants from railway equipment) has been in effect since 1999. We were informed by Environment Canada that its intention is to move from these voluntary guidelines under the MOU to an enforceable regulatory regime under the RSA by the time the MOU expires at the end of 2010.

8.1.3 Provinces and Territories

Provinces and territories have numerous pieces of legislation covering the environment, including their own dangerous goods transportation statutes, and generally have responsibility for environmental matters that occur within their territory. Provincial legislation covers spills on provincial land and into waterways and may also include air quality legislation and provincial rules for the control and use of pesticides. Nevertheless, provinces operate on the basis of a shared framework of environment-related legislation with the federal government when it comes to the railway industry.

Given this array of apparent overlapping authorities and jurisdictions, we were not surprised by the fact that the railway industry feels it is highly regulated on environmental issues. In practice, the "legislative regimes under which rail transport falls appear to be reasonably harmonized and/or complementary and their application largely coordinated by the federal and provincial departments tasked with their administration."4 As pointed out to the Panel by Environment Canada and others, responding to environmental emergencies is not "black and white," as there are unique circumstances surrounding almost every accident.

A specific area in which both federal and provincial legislation appears to exist is that of the transportation of dangerous goods. As discussed earlier, Transport Canada administers the federal Transportation of Dangerous Goods Act, and provinces maintain their own legislation but rely on the federal TDG Regulations. The federal TDG Act applies across Canada over all jurisdictions; however, in the case of TDG spills, federal officials generally defer to their provincial counterparts. Both levels of government may intercede and impose orders or levy penalties. Environment Canada normally assumes the role of providing assistance and/or expertise, while the province affected becomes more directly involved in the response effort. Environment Canada has the final say on when the clean-up has been completed at a site on federal land.

To help coordinate federal-provincial responses to environmental emergencies, Regional Environmental Emergency Teams (REETs) have been established as multi-agency, multi-disciplinary groups to provide coordinated advice, information and assistance in responding to emergencies. Membership may also include local government officials, the private sector, aboriginal communities and local residents.

Provinces generally also have railway safety legislation covering other aspects related to the environment, such as the use of pesticides, protection of clean air and water, and contaminated sites.

In terms of response to a railway accident at the local level, other than the train crew, it is normally the local police, ambulance, or fire department that are first on the scene to assess, respond and/or control access to the site of the accident or emergency. However, small and remote communities have limited resources who may have received less-than-adequate training on how to respond to environmental emergencies.

Local governments may adopt by-laws restricting the use of pesticides to control noxious weeds in their communities, but these by-laws would not apply to federal railway lands. The RSA also provides municipalities with an avenue to curtail train whistles within their boundaries, provided that the railway company has been consulted and Transport Canada has given approval.

8.2 Accidents: Preparedness and Response

While the first priority in a railway accident will always be consideration of the lives put at risk, another priority is protection of the environment. As mentioned above, specific federal and provincial legislation covering the transportation of dangerous goods is well spelled out, generally understood by the railway industry and effectively executed. In most instances, processes and procedures to respond to incidents work well, given the wide variety of interested parties that have to be mobilized to respond. At the federal level, the Transportation of Dangerous Goods Act and the Canadian Transport Emergency Centre (CANUTEC), operated by Transport Canada, provide a framework for emergency response to accidents involving dangerous goods.

CANUTEC is a national advisory service provided by Transport Canada to assist emergency response personnel in handling dangerous goods emergencies covering all modes of transportation. It can draw upon a database of chemicals that are manufactured, stored and transported in Canada. The CANUTEC staff of professionals, experienced in interpreting technical information, provides advice when called upon to do so. The Centre can be reached by telephone seven days a week and 24 hours a day. Federal regulations require that CANUTEC be contacted in the event of a dangerous goods accident or incident, as well as incidents involving infectious substances.

In the case of a train derailment involving a spill, the railway owner is accountable for emergency preparedness and incident management that includes assessing the initial hazard to determine the scope and nature of the response, supervising operations in the field, ensuring an integrated response, and meeting stakeholder needs with regard to information dissemination. The responsibility to respond, coordinate and monitor is shared with provincial authorities. While there could be an overlap of jurisdiction between the federal and provincial governments when federal legislation is involved, cooperation and delineation of responsibilities have been spelled out, in some cases, in formal agreements so that effective coordination and cooperation is achieved. The REETs, mentioned earlier, also play an important role.

Responding to accidents involving spills of dangerous goods has largely been addressed through response plans and procedures established by railway companies. One of the important requirements under the TDG Act and its regulations calls for emergency response assistance plans covering certain harmful dangerous goods that necessitate special expertise and response.

ERAPs are intended to assist local emergency responders in mitigating the consequences of an accident, by providing them with technical experts and specialized equipment at an accident site. ERAPs must include a number of items, such as a description of the emergency response capabilities, and information on the number of qualified individuals available to give technical advice, the number able to assist at the scene, a list of specialized equipment available for use at the scene, the communication systems expected to be used, and copies of any agreements with a third party for the provision of assistance. These mandated plans supplement the emergency response plans of carriers, as well as local and provincial authorities and the REETs. Approval of the ERAP by Transport Canada is required before certain dangerous goods can enter the transportation system.

Emergency response exercises and community outreach activities add to the degree of success that can be expected when an actual incident occurs. Railway companies and industry associations, such as the Canadian Chemical Producers' Association (CCPA), provided us with a number of examples of response preparedness and outreach initiatives that they undertake with responders and local communities that endeavour to mitigate the effects of accidents involving dangerous goods and other types of railway emergencies.

The industry has shown leadership, and two programs in particular are worth mentioning. Responsible Care® and TransCAER are initiatives whereby producers and carriers take stewardship over their products during their lifecycles and transportation in order to protect people and the environment. Responsible Care, launched by the CCPA in Canada in 1985, and supported by codes of practice, is a unique ethic for the safe and environmentally sound management of chemicals. TransCAER (Transportation Community Awareness and Emergency Response) is focussed on public awareness, dealing with chemical hazards and providing expertise to communities where and when needed.

In addition, the RAC provides railway dangerous goods specialists to assist smaller railways with respect to all aspects of dangerous goods transportation. Part of this initiative includes training for both railway employees and first responders regarding dangerous goods railway incidents.

8.2.1 Dangerous Goods Accidents

Over the last 10 years, the two major railways have increasingly been carrying more freight classified as dangerous goods, in terms of both revenue ton miles and thousands of freight cars moved – both measures have risen by close to 60 per cent.5Dangerous goods carried by rail are almost always marshalled in trains consisting of mixed freight.

Regulations made pursuant to the TDG Act set out criteria that define reportable accidents. These criteria include the quantity of dangerous goods released, and the potential for dangerous goods to be released. When more than the minimum quantity specified is released, an immediate report to Transport Canada is required. A report to Transport Canada is also required in the case of a potential release (e.g., when certain cars on a train have derailed, but the dangerous goods cars themselves have not).

According to the Transport Dangerous Goods Directorate of Transport Canada, TDG reportable railway accidents ranged from a low of 45 (in 1997), to a high of 100 (in 2003), for the period from 1997 to 2006. The data showed no tendency for the number of accidents or quantities released to have risen over this period.6 It is interesting to note that over the five-year period 2002-2006, only 48 of the total of 391 TDG reportable railway accidents (representing 12 per cent) occurred while the dangerous goods were in transit.7 This demonstrates that the focus needs to be on railway cars in railway yards, on sidings and at loading/unloading facilities.

TSB regulations8 for reporting railway accidents and incidents involving dangerous goods use broader reporting criteria than regulations pursuant to the TDG Act. Accidents are reported to the TSB when dangerous goods are involved or rolling stock is known to have carried dangerous goods but the residue has not been purged. It is not necessary to have an actual release of dangerous goods for the accident to be reported to the TSB. Further, under TSB regulations, a railway incident is reportable if rolling stock is not involved in an accident, but dangerous goods have been released, with no minimum quantity stipulated. The number of accidents and incidents reported under the TSB regulations in any given year is significantly higher than those reported in keeping with TDG reporting requirements.

TSB data demonstrates that the combined number of reportable railway accidents and incidents involving dangerous goods fell approximately 50 per cent, from close to 600 to fewer than 300, from 1997 to 2006.9 An increase in the volume of freight by 60 per cent between 1997 and 2006 (see Figure 2.5), coupled with a decrease in occurrences, demonstrates the extent to which the system is working - and that is due, in large part, to cooperation between the industry and government.

It is the view of the Panel that the TDG program is working well. This is indicated by TSB statistics that are linked to reporting requirements tracking a broad range of railway accidents and incidents involving dangerous goods. There are a number of key success factors for the program, including the requirement for emergency preparedness plans and response protocols, significant improvements to tank cars so that they can withstand collisions, a regulatory framework that allows for provinces to incorporate federal TDG regulations, rigorous enforcement, and railway and industry participation in programs such as Responsible Care.

Nonetheless, there is still great potential for serious harm to people and the environment, and there is always room for improvement in the transportation and handling of these dangerous goods. We expect that, through the implementation of recommendations in this report, railway safety in Canada will improve, and that this will translate into even fewer occurrences involving dangerous goods.

The TDG Act is not designed to prevent railway accidents and cannot ensure that accidents do not happen. Rather, its value is in the legislative framework it provides in terms of planning and prevention, response to dangerous goods accidents, and mitigation of the consequences of accidents.

Despite the best efforts of all involved, railway accidents continue to occur. We heard from many stakeholders that emergency response to major spills has yet to achieve the level of effectiveness and timeliness the public expects. Two contrasting examples most often mentioned to us were the accidents at the Cheakamus River crossing in British Columbia and at Lake Wabamun, Alberta, both of which were investigated and reported by the TSB.

8.2.2 Cheakamus River Accident

On August 5, 2005, nine cars were derailed on a CN freight train proceeding north, adjacent to the Cheakamus River. Eight of the cars were empty and one was loaded with sodium hydroxide (also known as caustic soda). Approximately 40,000 litres of caustic soda spilled into the river, causing extensive environmental damage and killing thousands of fish. In its report, the TSB determined that "although damage to the environment and wildlife in the Cheakamus River was extensive, the multi-agency response to the incident was well coordinated and effective."10 The contributing factors that led to the unfortunate accident included training issues, the operation of longer trains in mountainous terrain, the marshalling of rail cars, and the impact of distributed locomotive power on braking.11

In terms of the multi-agency response, the unified command (UC) system was employed by CN, as called for in its Dangerous Goods Emergency Response Plan, which also serves as its ERAP. The plan facilitates mobilization and efficient and effective use of resources for dangerous goods derailments. Implementation of the UC section of CN's response plan brought together provincial and regional response organizations, federal representatives, the shipper and other resources.

Cheakamus, British Columbia, August 2005
Cheakamus, British Columbia, August 2005

UC is a management concept for coordinating responses to emergency incidents by two or more organizations and provides guidelines for agencies to work together and jointly provide management direction to an incident through a common set of objectives and strategies. The UC system is similar to the internationally recognized emergency or incident response management system known as the incident command system (ICS). The ICS model is designed to ensure that leadership, whether jointly or individually held, is quickly established and recognized by all parties, that the jurisdictions of all responders are appropriately respected and their efforts coordinated, and that communications are centralized, accurate and consistent. The ICS model also encourages communities to identify and establish an emergency operations centre that can quickly become functional to provide communications equipment, office supplies and other resources required by responders to manage the emergency. In British Columbia, the ICS model has been adopted by the provincial government and mandated to be used by all provincial government agencies and Crown corporations since 1992. Through the British Columbia Ministry of Environment, two incident management teams have been established, one coastal and the other interior, which are responsible for the delivery of spill response plans.12

8.2.3 Lake Wabamun Accident

On August 3, 2005, 43 cars derailed on a CN freight train heading west from Edmonton, adjacent to Lake Wabamun. Twenty-five of the cars were loaded with Bunker C (heavy fuel oil), and one contained pole-treating oil. As a result, approximately 700,000 litres of Bunker C and 88,000 litres of pole-treating oil were spilled, some of which found its way into the lake, and resulted in property and environmental damage. The cause of the accident was determined to be a broken rail. In this case, although CN implemented its Dangerous Goods Emergency Response Plan, the UC section of the plan was not used and response agencies were not brought together as partners. The TSB determined that "the lack of an EOC (emergency operations centre) under the ICS unified command resulted in poor organization and communication, as well as poorly defined roles, responsibilities, and a lack of overall effective joint planning and coordination with emergency responders and government agencies."13 Further, the TSB notes that "there was considerable confusion among first responders in the first few days, due in part to the lack of a UC structure."14

The province of Alberta maintains a Dangerous Goods Incident Support Plan providing a framework for public and private sector responses to incidents that have an impact on the public or the environment. However, at the time of the accident, resources were not in place to support the plan and "in order to protect against the possibility of having to deal with other environmental spills, not all emergency equipment available in Alberta was deployed to the Lake Wabamun accident site."15In the aftermath of the accident, the Alberta government established a commission to look into how to improve its handling of environmental protection.16 Most importantly, the commission made a number of recommendations designed to strengthen the province's emergency management system, including adopting the ICS across Alberta to ensure effective coordination during emergencies.

A comparison of the Cheakamus River and Lake Wabamun accidents reveals that the response differed, in part, due to the nature of the spilled commodities. The caustic soda spilled in the British Columbia accident involved a dangerous good as described under the TDG legislation. Neither the Bunker C nor the pole-treating oil spilled in Alberta were classified as dangerous goods.17 This important difference may have affected CN's decisions about, and responses to, the two accidents.

Under the TDG legislation, precise procedures and protocols must be followed and when dangerous goods are involved in a transportation accident the federal government becomes involved. The response protocol for environmentally hazardous goods (i.e., unregulated goods that pose a significant threat to the environment and/ or human health) is less clear. For accidents not involving a dangerous good, the CN Dangerous Goods Emergency Response Plan did not automatically invoke the establishment of a unified emergency operations centre that would have included a wider array of provincial and federal representatives. This was one of the problems at Lake Wabamun, as pointed out by the TSB in its investigation report.

At the Wabamun derailment there was confusion over what the train was carrying that led to confusing messages to our members and increased anxiety.

United Steelworkers Submission, View From The Track, page 11.

Other TDG requirements, such as placards on the rail cars identifying their contents, something that would be important to first responders, are also not required for the transport of environmentally hazardous goods. As the TSB found, "the hazardous properties of Bunker C and pole-treating oil were not understood and effectively communicated to enable preventive mitigation of the associated risks to residents, workers and the environment."18

It should be pointed out that since the two accidents mentioned above, CN has taken additional measures such as ensuring additional response equipment capabilities are available, strengthening its dangerous goods program, including enhanced public outreach, and extending its various emergency response plans to cover all emergencies and not just those involving dangerous goods.

8.2.4 Towards a New Protocol

Through the two examples of accidents in British Columbia and Alberta, and as a result of our public consultations, we learned that there is a robust regime for responding to spills involving dangerous goods as defined by the Transportation of Dangerous Goods Act, but that a gap exists with respect to environmentally hazardous goods. Whether a dangerous good or an environmentally hazardous good is involved, other factors, such as the remoteness of the spill location, the weather, slow or incomplete communication of facts, or the lack of available resources can also hinder the response and clean-up efforts. A common complaint we heard from many stakeholder groups was not knowing "who's in charge." Clear and accurate information is needed in cases when many participants from various levels of government are activated to respond to an accident.

We were quite surprised to learn that the Lake Wabamun accident did not involve dangerous goods and that the response and role of authorities was not as vigorous as it could have been. The commission established by the Alberta government to review the accident found that "the [provincial] Dangerous Goods Incident Support Plan was never triggered for the spill … because it didn't involve products regulated as dangerous goods," and that "this contributed to a situation where resources weren't activated."19 This observation also recognizes a major gap between responses to dangerous goods accidents and those involving environmentally hazardous goods.

In both the British Columbia and Alberta spills, provincial authorities were involved in the response effort, but to varying degrees and with different levels of success. As a Panel, we did not look into the response effort for these two spills in great detail apart from the reports already quoted, but note there were significant differences between the two responses, even though they involved the same railway company, and on the surface, appeared to be of a similar type. There were differences in the initial assessment of the accident; the identification of the product and the determination of how much of it had spilled; the speed with which resources were deployed to contain and clean up the spill; and the extent to which provincial, federal and local communities were kept informed. At the Lake Wabamun spill, it appeared to some in the local community that the railway devoted too much effort to re-opening the rail line and not enough on clean-up activities. This has been attributed to the fact that CN had to wait for additional clean-up equipment to be brought from afar.

As noted above, organizing a response effort is critical, albeit for a dangerous goods incident or other railway emergency. Some provinces and many organizations employ a form of uniform command or incident command system to coordinate activities of more than one party.

Another emergency response model worth mentioning is the Canadian Standards Association Emergency Response Standard, established to inform businesses and public organizations about planning, administration, training, resource utilization, auditing and other aspects of emergency preparedness and response.20 The standard is designed to establish minimum criteria for the effective response to emergency situations and could also be used as a point of reference in developing response plans to all types of derailments and spills. The basic premise of this standard is the need for prior agreement on how a response effort is to be organized between parties. These issues must be addressed in the planning and preparedness stage of any successful response plan and then must be tested through exercises, and regularly updated.

As pointed out in the discussion above, environmentally hazardous goods carried in rail cars do not require an ERAP or other protocols provided for the transportation of dangerous goods under the TDG Act. Basic procedures, such as accurately tracking the contents and location of an individual rail car that could be carrying an environmentally hazardous good, and placarding these rail cars, are not currently required.21 Railway personnel and first responders must be able to readily identify what each rail car contains, in the event of an accident.22 Such a gap is certainly troubling when one considers the risk to first responders as well as to railway personnel. This situation should be remedied through the development of a new protocol dealing with the transportation by rail of environmentally hazardous goods.

The lack of a regulatory regime governing the transportation of environmentally hazardous goods is one of the greatest concerns to the Panel. When accidentally released from a rail car, environmentally hazardous goods can pose a serious risk to people, property and the environment. The Lake Wabamun spill is a good example. Given that some of the properties of pole-treating oil are detrimental to human health, we had expected it to be classified as a dangerous good. Further, the spill of Bunker C resulted in the death of many birds and contamination of the lake. Even goods not thought of as hazardous in small quantities can be potentially lethal to fish and wildlife when spilled into the environment in large amounts. Considering that great lengths of the national rail system follow rivers and lake shores, and pass through countless communities, it is especially important to ensure that all spills are accorded a high level of preparedness and response.

The treatment of environmentally hazardous goods that do not come under protocols, such as those imposed under the Transportation of Dangerous Goods Act, needs to be addressed. We see an urgent requirement for the development of a federal protocol that can attend to assigning roles and responsibilities designed to improve the planning, preparedness, reporting and response to accidents and incidents involving the transportation of environmentally hazardous goods. Such a protocol should use the TDG Act as a model, and involve consideration of possible legislation, regulations and standards that would provide comprehensive direction to the railway industry and shippers. Hazard assessment, response structure and incident management, roles and responsibilities, product response plans (similar to an ERAP), emergency response plans, training and awareness, as well as sharing information and best practices, are elements of the protocol that would need to be addressed through a collaborative effort involving federal, provincial and industry stakeholders.

The TSB investigation report into the Lake Wabamun spill expressed concern that "Environment Canada has not established environmental response protocols with its provincial counterparts to ensure an adequate and comprehensive early response to environmental damage as a result of rail transportation accidents."23 Care needs to be taken to coordinate any efforts on the part of Transport Canada and Environment Canada in this regard.



Recommendation 38

Transport Canada, in conjunction with all stakeholders, should develop a protocol for emergency response to spills of environmentally hazardous goods that are not designated as "dangerous goods" under the Transportation of Dangerous Goods Act.



8.2.5 Environmental and Emergency Response Standards

During many of our consultation sessions, and in written submissions, the capacity of local emergency personnel to respond to derailments and environmental spills was a recurring issue. This was particularly the case for derailments and spills that occur in small communities or remote areas where the response capacity can be overwhelmed. While preparedness of communities is a provincial matter and outside the purview of the RSA, the railway industry must take into account such eventualities and plan for all types of responses. For instance, if the railway regularly carries predictable quantities of products, it should conduct a risk assessment and have a plan in place for deploying response resources necessary to contain and clean up any spill. Developing plans, exercising them and communicating with others who would be involved with the response should be an ongoing responsibility of the railway companies.

We heard from the railway industry and others that railways have emergency plans and undertake outreach and awareness efforts with local communities and first responders to provide them with information, courses and briefings. Railways and industry associations certainly should be commended for taking proactive measures such as these, and for attempting to build partnerships. We understand the difficulty of reaching every community, given the magnitude of such an effort and the many different community groups that take an interest in public safety and protection of the environment. Yet many informed us that they feel there is a lack of communication and awareness regarding emergency preparedness and response to railway emergencies.

At the end of day one, residents had yet to receive any direct communication from CN officials, Transport Canada, Environment Canada, Alberta Environment or Capital Health (the regional health authority), regarding the nature of the spill, the safety of our water or the disaster control plan.

Lake Wabamun Residents Committee Submission, page 3.

In some regions of Canada, we sense that there is a lack of confidence in the ability of railways to ensure that the right things are done at the right time – responses to a few incidents that do not meet the level of expectation of the public can quickly destroy trust in the railways. In other locations, there may be a sense of apathy until some accident or emergency affects the community, and then a sense of outrage emerges when the impression is that more could have and should have been done. Building lines of communication and trust between railways, communities and local citizens is essential in preparing for and responding effectively to emergencies.

When an accident happens, the first to be informed and to arrive on the scene are usually the railway operator (including the train crew) and local authorities, such as police, ambulance and fire departments. Other resources and agencies arrive as required in due time. In a CP submission,24 the company sets out the four priorities that guide its response to train accidents. The first is ensuring the safety of railway employees and of the community affected. Protecting the environment is second. Identifying and preserving all key evidence for future cause-finding and corrective action is the third priority. Finally, safely restoring railway operations takes place after the safety of people and the environment has been assured. Such priorities should be evident in all response plans and in the protocol recommended above.

Thee are a much wider variety of train incidents/emergencies of concern to a municipality – through their emergency services and public – than those falling under dangerous goods legislation.

Strathcona County Submission.

Many local government authorities and others brought to our attention their concerns for the safety of their responders and citizenry. It appears that the railways have taken many initiatives, but that things can always be improved, such as identifying the environmentally hazardous goods contained in rail cars. Railways and authorities also need to quickly and accurately evaluate the extent of a spilled commodity, or likelihood of a spill, so that the response effort can be mobilized to deal with the maximum amount of material potentially involved, not the minimum. It is better to assume the worst-case scenario until evidence to the contrary is confirmed. Full disclosure of known facts to the authorities and the public as soon as possible can allay fears of environmental calamity or human health risk.

At the federal level, there is room for action under the Railway Safety Act to help guide the industry and other stakeholders towards a state of readiness to deal with environmental accidents involving both dangerous goods and environmentally hazardous goods in the railway mode. Building on our recommendation above, we feel that Transport Canada should develop a standard of emergency response to spills of dangerous goods, environmentally hazardous goods and other goods, in conjunction with the railway industry and other interested parties. The standard should consider such things as performance standards for railway and third-party responses to a spill, target response times in rural and urban locations for specific numbers of personnel and quantities of equipment to be on-site, worst-case scenarios, and timetables for training and exercising of plans.

For example, in the marine mode, Transport Canada has enabled the creation of certified response organizations and set standards for responding to oil spills. Ships operating in defined Canadian waters must have an arrangement with a certified response organization capable of responding to ship-source oil spills. Depending on the amount of oil spilled and its location, a specified response capability, in terms of time and effort, has been established by response organizations and approved by Transport Canada. When developing a railway response standard, it would be worthwhile to examine the marine example and others that may be found in the different modes of transportation and jurisdictions. At the same time, it would be worthwhile to consider passenger rail preparedness and response to accidents to ensure that resources and procedures are in place and up-to-date for this sector as well.



Recommendation 39

Transport Canada, in conjunction with the industry, should establish a Canadian standard of emergency response for the railway industry (for dangerous goods, environmentally hazardous goods and other goods).



8.3 Other Environmental Issues

In addition to the obvious environmental issue of dealing with railway accident spills, a number of other environment-related issues were raised during our consultations. Some of these issues warrant attention, and while we have not made individual formal recommendations on each subject, nevertheless, we would expect our suggestions to be carefully considered for possible action.

8.3.1 Pesticide Use

The RSA authorizes the removal of vegetation and trees from railway rights-of-way as a safety precaution to improve visibility and reduce fire hazards. The legislation is not prescriptive in how this should be accomplished. Using pesticides is likely the least expensive and most effective means available and is widely used by the railway industry. At present, railways must apply for permits from each province in which they operate to undertake spraying. This has resulted in a patchwork of regulatory requirements, as rules are not consistent across all provinces. Railways would welcome federal regulation that would standardize the rules governing the application of pesticides and eliminate the requirement for provincial permits.

As with lawn spraying, many people and some municipalities oppose spraying on railway lands, particularly along municipal corridors. A number of municipalities across Canada have banned spraying of lawns in their communities and have asked railways to comply with the ban. Because railway lands fall under the jurisdiction of federal authorities, municipalities have little influence over railways in these matters. The RSA provides for the Governor in Council to make regulations respecting the use of alternatives to chemical pesticides for removing brush and weeds along railway lines (section 24.1(e)(iii)), but no regulation has been created. The issue of pesticide use could be a topic for discussion at the Federal-Provincial Working Group on Railway Safety, or as a proximity related item between the Federation of Canadian Municipalities and the railway industry. The Rail Safety Directorate may also consider making regulations on the use of alternatives to chemical pesticides in collaboration with the railway industry and other interested parties.

8.3.2 Railway Yard Spills

A result of the many years of railway operations is the impact on the soil and water in and around railway yards. Accumulated spills of relatively minor quantities of products, such as those used in the maintenance of railway rolling stock, and the occasional leakage or spill of dangerous and environmentally hazardous goods in railway yards, may result in a contaminated site over time. Environment Canada has jurisdiction over land and water contamination on these federal lands, while Transport Canada oversees railway operations. Large reportable spills are normally subject to specific clean-up protocols and timetables according to either federal or provincial requirements.

Numerous small spills that may not be required to be reported to regulatory authorities may build up over a long period and can become a problem. Railways try to contain and clean up such spills through a variety of measures, but are not always completely successful. It is highly likely that site remediation of railway yards would be necessary to reduce the toxic substances in the soil and water table - something that would not normally be required until their use as railway yards changes. Certainly, the owner of the land is responsible for operating in an environmentally sustainable manner and for site remediation.

We have perceived a gap between federal authorities in monitoring leakages and spills of dangerous goods and environmentally hazardous goods in railway yards. In most cases, Environment Canada expects the transportation regulator to intercede, since it is related to train operations, while the Transport Canada railway safety inspector is not sufficiently trained or knowledgeable to assess site contamination. As a result of this dichotomy, we believe that more can and should be done by the industry to prevent occurrences in railway yards, including responding quickly to clean up any spilled material that threatens the environment. The federal government also needs to become more proactive in performing a monitoring role and should clearly establish a lead authority on this matter.

8.3.3 Air Emissions

Transport Canada has the potential to regulate the release of pollutants from the operation of railway equipment into the environment (section 47.1(2) of the RSA). However, no regulations under this provision have been promulgated. Climate change is a major concern these days, and the Panel is pleased to give credit to the railway industry, Transport Canada and Environment Canada for the May 2007 renewal of the memorandum of understanding on reducing railway air emissions that contribute to greenhouse gases.

Under the MOU, voluntary targets have been established for major freight railways, short line railways, intercity passenger rail and commuter rail services. The 2010 greenhouse gas reduction target for the major freight railways represents a 44 per cent improvement from 1990-2010.25 Part of the action plan calls for the major railways to purchase only new locomotives certified by the U.S. Environmental Protection Agency (EPA), and to upgrade existing in-service locomotives when they are overhauled, beginning in 2010, to the EPA standards in effect at that time. The MOU, with its voluntary targets, which expires on December 31, 2010, is expected to be replaced by regulations under the RSA.

Given the length of time required to develop regulations, especially in the area of environmental protection, the Panel feels it would be appropriate for Transport Canada and Environment Canada to commence stakeholder consultations with the railway industry in this regard, with the expectation that enforceable regulations can be put in place beginning January 1, 2011, when the MOU expires.

8.3.4 Grain Spills and Other "Littering"

During our consultations, we received numerous verbal and written submissions pointing out that the contents of many grain cars leak onto railway tracks. Animals attracted to the spills are then exposed to the danger of being hit by a train. In addition, grazing wildlife, such as grizzly bears in national parks, pose a risk to railway employees who have to leave the locomotive and walk the length of train to inspect rail cars. The problem is not confined to grain, but extends to other commodities, such as wood chips, coal dust or plastic pellets. If these commodities are not handled and treated appropriately, they can be released from railway cars either en route or in railway yards.26 We are concerned about this sort of "littering."

Approximately 12,000 railway hopper cars in the Government of Canada fleet are used by CN and CP railways, free of lease costs to the railway, to move regulated western grain to ports. The railways have day-to-day control of the cars and allocate them to grain shippers on a commercial basis. Under new agreements between the railway companies and the Government of Canada, both CN and CP have agreed to undertake a hopper car inspection and refurbishment program addressing both safety and non-safety components. In particular, because cars operated by CP had an inadequately designed gate, CP will be replacing poor-performing discharge gates on the federal grain cars it operates, thereby reducing leakage. CN is also obligated under the new agreement to inspect all discharge gates and make repairs, as required. Each year of the first five years of the refurbishment program, Transport Canada will conduct an inspection of refurbished cars to assess that all necessary work has been performed.

8.3.5 Noise

There is no legislation or regulation dealing with noise levels created by railway operations except for the RSA provisions on whistling. Apart from whistling, most railway noise, except the noise of a passing train, is generated from level crossing bells and shunting operations in and around railway yards. Discussion of this topic can be found in Chapter 7.

8.3.6 Environmental Management Plans

The issues we have discussed need to be addressed in a more disciplined fashion. The RSA provides for the regulator to make regulations or rules governing the protection of the environment in a number of areas, and Transport Canada, Rail Safety Directorate should be giving greater attention and priority to dealing with its environmental objectives.

To ensure that the railway industry is operating in an environmentally responsible manner, Transport Canada as regulator, should take appropriate action. The Panel is of the view that environmental management plans should be submitted by railway companies to the department. In collaboration with Environment Canada, Transport Canada should review the content and scope of such plans in order to establish common, basic criteria. Consideration of how to monitor and/or audit these plans also needs to be addressed. Such plans would be reviewed and updated annually by railway companies with changes being submitted to the regulator. Companies would be expected to audit their plans periodically and provide audit results to Transport Canada. This process could be incorporated as a new requirement under the existing safety management system regulations. Environmental management plans should focus on current issues and be "forward looking."



Recommendation 40

Railway companies should file annual environmental management plans and regular compliance audits with Transport Canada. These plans should address, among other issues, pollution of railway property (i.e., yards and railway rights-of-way).



8.3.7 Fires Caused by Railways

Forest fires and other brush fires, including those caused by railway operations, can become a serious threat to the public and the environment. Fires along railway rights-of-way can be caused by a number of railway activities, including rail grinding and welding, braking operations or the exhaust of locomotives. Fires can also be caused by non-railway activities, such as by campers or lightning strikes.

Forest fire management responsibilities reside with natural resource management agencies of provincial and territorial governments. In national parks, Parks Canada has a forest fire management mandate.

According to the Canadian Interagency Forest Fire Centre (CIFFC), more than 140 fires associated with railway operations are started each year in territory outside municipal areas.27 CIFFC is a non-profit corporation that represents a partnership among provincial, territorial and federal government agencies responsible for forest fire management in Canada. The Centre has an operational arm that gathers, analyzes and disseminates fire management information to facilitate sharing of forest firefighting resources across Canada, including equipment, personnel and aircraft. Planning and preparation, as well as education and awareness activities, are important for success in fighting forest fires.

Most of the railway-caused fires are extinguished while they are still small, but some cannot be contained and grow to cause significant damage. CIFFC estimates that railway fires are responsible for roughly 17,700 hectares burnt on average each year, and it has spent approximately $6.4 million per year over the last 10 years suppressing such fires.28 Railways have not been complacent and have taken several measures over the years to reduce the probability of fires along their rights-of-way, including equipment and operating practice modifications. An example is the installation of spark arrestors on locomotive exhaust stacks.

While fire suppression agencies will normally pursue recovery of costs associated with fires they attribute to railway companies, we were informed that railways often challenge such action. Perhaps one of the motivations for companies to challenge cause determination is that such determinations are carried out by fire authorities without the participation of railways, and railways are not always convinced that their rail operation was indeed the cause.

We understand that, in many cases, railways do rely on public firefighting agencies to combat fires attributed to them. However, we also heard that these firefighting agencies are obligated to pursue cost recovery. Court challenges create delays and added costs which are borne by both parties. While the Panel certainly supports due process in legal proceedings, we are very concerned that processes surrounding the determination of cause, and the forum by which resolution of disputes is arrived at, have not been made clearer.

Under the RSA, Rules for the Control and Prevention of Fires on Railway Rights-of-Way were developed in 1995 by the Railway Association of Canada on behalf of railway companies. The rules require railway companies to ensure that suitable measures are in place to prevent and control fires on railway rights-of-way through training of personnel, fire prevention and control plans, prevention and hazard reduction practices and sufficient personnel for fire patrol and firefighting requirements. The rules clearly state that it is the responsibility of the railway company to extinguish all fires on railway rights-of-way, irrespective of the manner in which the fires were started, and fires off the right-of-way that were started or presumed to have been started as a result of railway operations.

These rules appear to be lacking in several respects. There are no compliance or enforcement provisions and no penalties or incentives. Although the rules clearly state that the railway company is responsible for extinguishing the fire, they are open to interpretation as to liability and associated costs. Further, the rules are silent on cost recovery, a process for determination of cause, and a forum for deciding apportionment of cost. The rules assign no role to railway safety inspectors. Fire service inspectors (provincial authorities) are cited but they are not sufficiently familiar with railway operations to take effective action.

Clearly, there is a requirement for these rules to be revisited. Given that fires caused by railways affect third parties, well beyond the purview of Transport Canada and the railways, it would be more appropriate to rewrite the rules pertaining to the prevention and control of fires associated with railway operations as a new regulation. This should be a collaborative effort involving railway companies, firefighting agencies and the regulator, and should take into account provisions for apportioning firefighting costs and settling disputes, if they were to occur.



Recommendation 41

The Rules for the Control and Prevention of Fires on Railway Rights-of-Way are neither effective nor enforced, nor do they provide for an adequate process for compensation. Since these rules involve third parties, they should be replaced by regulations.



To sum up, the Panel concludes that Transport Canada needs to increase its capacity to fulfill its environmental obligations under the RSA and needs to be more proactive. Environmental issues are destined to become even more important as the challenges they present become more pronounced. As discussed in Chapter 11, resources will need to be devoted to fulfill this important role.



Recommendation 42

Transport Canada should develop sufficient capacity and expertise to ensure appropriate oversight of the railway industry with regard to all aspects of environmental protection.



Notes

1 Liane E. Benoit, Benoit & Associates, Rail Transport and the Environment in Canada (August 2007), section 3.

2 Flashpoint means the lowest temperature at which the application of an ignition source causes the vapours of a liquid to ignite near the surface of the liquid or within a test vessel.

3 While not federally regulated as to their safe handling and transportation under the TDG Act, there may nevertheless be other regulatory requirements that apply.

4 Benoit, Environment, op cit., section 3.

5 Joseph Schulman, CPCS Transcom Limited, The State of Rail Safety in Canada (August 2007), section 6.1.

6 Ibid., section 6.2.

7 Ibid., section 6.2.

8 Transportation Safety Board Regulations (SOR/92-446), s. 2(1).

9 Schulman, State of Rail Safety, op. cit., section 6.3, Figure 6.4.

10 Transportation Safety Board, Railway Investigation Report R05V0141, Derailment, CN Freight Train Squamish Subdivision, Garibaldi, British Columbia, 05 August 2005 (July 11, 2007), page 24.

11 Ibid.

12 BC Railway Sector Review on Environmental Emergency Preparedness and Response Capacity: A preliminary analysis of environmental emergency preparedness for train derailments. Jointly produced by the BC Ministry of Environment and Environment Canada; December 2006, page 17.

13 Transportation Safety Board, Railway Investigation Report R05E0059, Derailment, CN Freight Train Edson Subdivision, Wabamun, Alberta. 03 August 2005 (October 25, 2007), page 23.

14 Ibid., page 31.

15 Ibid., pages 24, 31.

16 Alberta Environment, Alberta Environmental Protection Commission, Learning the Lessons and Building Change: A Review of Alberta's Environmental and Emergency Response Capacity (2005).

17 The Bunker C was not classified as a "dangerous good" under the TDG Act because it was never at a temperature greater than or equal to its flashpoint at any time while in transit.

18 TSB Wabamun Report R05E0059, op. cit., page 27.

19 Alberta Environmental Protection Commission, Learning the Lessons, op. cit., page 11.

20 Canadian Standards Association website: www.csa.ca.

21 Under the TDG Act, identifying dangerous goods on the outside of a railcar (marking with approved signs, or "placards") is a legislated requirement; placarding is not required for environmentally hazardous goods that are not subject to the Act.

22 Manifests are normally carried in the locomotive that should contain information on the contents of each railcar in the train.

23 TSB Wabamun Report R05E0059, op. cit., page 32.

24 Canadian Pacific Railway Company, "Safety Demands Continuous Improvement," Opening Submission (April 2007), page 14.

25 Transport Canada, "On Track Towards a Cleaner, Greener Rail System," News Release No. GC 018/07 (May 15, 2007).

26 The railways sometimes use vacuum trucks to pick up spilled materials but such attempts cannot be employed across the vast rail network with complete success.

27 Canadian Interagency Forest Fire Centre (CIFFC), Wildland Fires Resulting From Railway Operations - A Public Safety Threat, Submission to the Advisory Panel, RSA Review (July 2007) page 2.

28 Ibid., pages 4-5.

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