Canada: Recommendations Stemming From The Lac-Mégantic Rail Accident Published By Canada’s Transportation Safety Board

On August 19, 2014, the Transportation Safety Board of Canada (TSB), an independent investigative body of the Canadian government, published a detailed report following the investigation into the July 6, 2013 rail accident in Lac-Mégantic, Quebec.

The TSB report follows a thorough investigation, multiple interviews and metallurgical and chemical analyses that were conducted after the rail accident, which claimed the lives of 47 people in the municipality of Lac-Mégantic and resulted in the release of 6 million litres of petroleum crude oil into the municipality's environment.

The TSB report identifies, without ranking them in order of importance, 18 factors that, in its view, contributed to the accident.

The TSB determined the part played by certain people in the events leading up to the disaster and examined the prescriptive regime and culture of the rail operator involved, Montreal, Maine and Atlantic Railway (MMA), and the role of the regulatory regime for the Canadian rail transport industry as it was applied to MMA.

The accident involved a freight train consisting of 5 locomotives and 72 tank cars carrying approximately 7.7 million litres of petroleum crude oil from 11 different producers in the Bakken shale formation in North Dakota to an oil refinery in New Brunswick. Moving crude by rail is a relatively new phenomenon that is rooted in, among other things, the shortage of capacity on North America's oil pipeline system. In just a few years, shipments of crude oil by rail have increased dramatically, in frequency and volume, in North America, with the number of car loads of crude rising from 500 to 160,000 per year in Canada and from 10,800 to about 400,000 per year in the United States between 2009 and 2013.

In its report, the TSB makes particular mention of the following factors:

  • the events that took place during the fire that occurred on the night of July 5-6, 2013 on one of the train's locomotives at Nantes.
  • the matter of the hand brakes and air brakes applied on the tank cars and locomotives;
  • ineffective training and oversight within MMA;
  • deficiencies in MMA's safety management system (SMS) and its weak safety culture;
  • inadequate regulatory oversight of MMA by Transport Canada, the government authority with jurisdiction over MMA.

The TSB then summarizes post-accident safety actions taken by MMA, Canada's large railway companies, Transport Canada, the U.S. rail transport authorities and the organizations representing rail transport companies in Canada and the U.S. and describes the rail safety advisories issued by the TSB on July 18 and September 11, 2013 and the preliminary recommendations issued by the TSB on January 24, 2014 regarding:

  • the enhancement of manufacturing standards for the DOT-111 tank cars used to transport flammable liquids;
  • the enhancement of operating criteria for trains carrying dangerous goods, particularly with respect to route planning and analysis and periodic risk assessments; and
  • the development of emergency response assistance plans for the transportation of large volumes of liquid hydrocarbons.

The TSB has acted quickly to recommend measures that could make it safer to move hazardous materials by rail. Moreover, all of the TSB's rail safety advisories and recommendations have been followed by a swift regulatory response from Transport Canada. In addition to the prescriptive recommendations issued by the Office of the Auditor General of Canada and the U.S. Pipeline and Hazardous Materials Safety Administration, the TSB report includes two new recommendations to tighten certain safety measures affecting the operation of freight trains and SMS control measures, namely:

  • that the Department of Transport require Canadian railways to put in place physical defences on hazardous materials trains to prevent runaway equipment; and
  • that the Department of Transport audit the SMSs of railways to confirm that they are effective and that corrective actions are implemented to improve safety.

The TSB recommendations will no doubt result in tighter regulatory requirements for the transportation of dangerous goods by rail being introduced in Canada and the U.S. and in enhanced voluntary standards being issued by the associations representing the railways, which often set out the practices railways agree to follow in conducting their rail activities.

Norton Rose Fulbright Canada has published the following legal updates on the Lac-Mégantic rail accident and the transportation of crude oil by rail:

  • August 2013: Lac-Mégantic rail disaster: Quebec government issues emergency environmental decontamination order
  • January 2014: Transport Canada to designate some crude oil shipped by rail or truck as highly dangerous
  • January 2014: Canada's transportation safety board makes recommendations following crude-by-rail accident in Lac-Mégantic
  • February 2014: US Department of Transportation issues notices of probable violation to three companies for mislabeling crude oil rail shipments
  • July 2014: Transport Canada brings new crude-by-rail regulations into force

Norton Rose Fulbright Canada LLP

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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