Ten areas of regulatory failure that contributed, directly or indirectly, to the Lac-Mégantic disaster

My report, Willful Blindness?, released today, summarizes the regulatory failures behind the Lac-Mégantic tragedy. The federal government has so far not acknowledged any culpability or responsi

My report, Willful Blindness?, released today, summarizes the regulatory failures behind the Lac-Mégantic tragedy. The federal government has so far not acknowledged any culpability or responsibility for the accident. On the contrary, the Minister has blamed the accident on the negligence of individuals and not on gaps in the regulatory regime.

In reality, there were multiple regulatory failures. It is one thing if there was just one or two, but the many failures contributing to the accident begs the question: was this a case of willful blindness?

My report comes the day before the Transportation Safety Board (TSB) issues its final investigative report. No doubt it will reveal important information about the causes of the accident. However, it may temper its criticism of Transport Canada, sidestep or obscure some areas of regulatory failure. It is important to note that the TSB is not a truly independent body.

Hence, my question: how far will the TSB go in identifying regulatory failure within the federal government? How far up the pyramid of responsibility will it probe? Will it challenge or reinforce Transport Canada’s view that the accident was the result of individual negligence and not due also to regulatory gaps?

Below are ten areas of regulatory failure relevant to the actions Montreal Maine and Atlantic (MMA)—whose train derailed and exploded causing 47 deaths and untold suffering for the citizens of Lac-Mégantic.

1. Transport Canada gave MMA permission to operate its massive unit oil trains with a single-person crew over the strenuous objections of its Montréal office, the union representing the workers, and a variety of experts; and without proper consultation with the communities through which the train passed.

2. MMA had a long history of safety violations involving inspections, braking systems, defective equipment, etc. Transport Canada warned the company repeatedly, yet imposed no penalties on the company. Either it didn’t have the proper enforcement tools, or it did not have the will to do so…or a combination of both.

3. The appallingly poor condition of the MMA track has been widely documented. And yet it was not designated as “excepted track” which would require strict 10 miles per hour speed limits and prohibitions on transporting dangerous goods.

4. MMA’s safety management system, which all railways are required to have in place, was not approved until 2010—seven years after it had been submitted to Transport Canada. Some employees did not even know it existed. This represents a spectacular failure of oversight and enforcement required for the proper functioning of this type of regulatory regime.

5. MMA was required to provide a risk assessment to Transport Canada with regard to its proposal to move to one-person crews—demonstrating mitigating actions it would take to offset any increased risk to public safety. Transport Canada won’t make its risk assessment public, claiming it is private company information. Presumably it approved MMA’s risk assessment. It is likely that this assessment was defective.

6. MMA was also supposed to provide a risk assessment of any major changes in its cargo—in this case a major increase in the transportation of crude oil, a dangerous good—which began in earnest in November 2012. It is questionable whether MMA did such a risk assessment, or whether Transport Canada approved it.

7. The cozy relationship between the regulator, Transport Canada, and the regulated companies, is reflected in the influence of the rail lobby, the Railway Association of Canada (RAC). MMA appealed to the RAC when it encountered resistance to its request for permission to operate single crew trains—from Transport Canada’s own Montreal office staff and from the MMA union, the United Steelworkers. RAC approached Ottawa headquarters on behalf of MMA. Who at Transport Canada made the decision, on what grounds, and who was party to the decision—has not been revealed. However, the company got its permission (formally or informally) to operate single-person crews in May 2012.

8. Contrary to Transport Canada’s claim that the Transportation of Dangerous Goods (TDG) division’s inspection/oversight system was functioning well, there is considerable evidence that its resources were woefully inadequate to cope with the massive increase in oil-by-rail traffic. The number of inspectors has remained the same since 2004. Its budget had been frozen since 2010. The ratio of TDG inspectors to oil carloads increased from 1:14 to 1:4500 from 2009 to 2013. According to internal documents, Transport Canada was not concerned about the public safety implications of the increase in oil traffic or the nature of the tank cars in which it was being transported.

9. The contents of the MMA train were listed on its manifest as being of low volatility when they were in fact of a higher volatility—akin to gasoline—evidence of lax testing practices. Despite indications prior to the accident that oil from the Bakken region of North Dakota was highly volatile, Transport Canada claimed ignorance of this fact. Moreover, it did not classify crude oil as a dangerous good requiring additional care, or that unit oil trains with up to 100 tank cars required special precautions.

10. Despite multiple warnings from both countries’ transportation safety boards, Transport Canada along with the US regulator resisted efforts to implement a speedy phase-out of the old single-shell DOT-111 tank cars. The US National Transportation Safety Board had recommended that no higher volatility oil be carried in these old cars. All tank cars on the Lac-Megantic train were of this model.

Lac-Mégantic is the most devastating Canadian rail disaster in a century.

How is it possible that it does not warrant an external, fully independent inquiry? This is a necessary prerequisite to truly understanding what happened and prevent future disasters. Until then, no community can feel immune to a similar catastrophe.

Bruce Campbell is Executive Director of the Canadian Centre for Policy Alternatives.