By KEVIN MCGRAN
TRANSPORTATION REPORTER
Date Mar. 6, 2006. 09:06 AM

Canadian freight trains are running off the rails in near record numbers and spilling toxic fluids at an alarming rate, but only a tiny fraction of the accidents are ever investigated, a Toronto Star probe shows.

The number of accidents has risen each year since 2002, according to a decade's worth of accident reports filed by the Transportation Safety Board and obtained by the Star through a federal access to information request. There were 11,147 accidents between 1996 and the end of 2005 and almost all involved freight trains. Last year, there were 1,246 accidents — the most since 1996 — and 215 of them involved toxic and dangerous materials.

Freight trains are essentially two-kilometre-long mobile warehouses, travelling across the country past hundreds of thousands of backyards. When they travel too fast over crumbling rail, they become missiles, a derailment waiting to happen.

Poor maintenance, human error, an over-reliance on technology and staff cuts at the two national railroads are contributing factors for the most serious accidents reviewed by the TSB. But only 1.3 per cent of all accidents are investigated by the TSB, with the rest filed under "data collection."

The two major rail lines, CN and CP, say they are making big investments to try to cure the problem. CN, for example, is spending $1.5 billion — a 9 per cent increase over last year — on capital projects, including $800 million to replace track material.

The Star found that serious accidents not probed by the TSB include some in which dangerous goods such as ammonium nitrate, sodium chlorate and sulphuric acid were spilled. The TSB says it's at the limit of its staff and has to be selective in what it investigates — injuries, evacuations and magnitude of damage are factors considered.

The Star has also found that Transport Canada — the rail industry's regulator — is either unable or unwilling to prosecute the railways, with five convictions from seven prosecutions since 1999 under the Railway Safety Act, a span that includes 7,658 accidents. The penalties have totalled $168,000 in fines, according to Transport Canada.

"We think the risk to safety is increasing and the public doesn't know it," says Winnipeg lawyer Winston Smith, co-founder of the watchdog group Professionals for Rail Safety Accountability. "We need to have an inquiry to look at it."

The rising accident rate comes at a time of record profits in the industry, reaping the financial benefits of 1990s layoffs, when one-third of the rail labour force was chopped.

In 2005, Canadian National Railway Co. turned a profit of close to $1.5 billion, up 24 per cent from the previous year. Profits at Canadian Pacific Railway Co. hit a record $543 million, up 32 per cent from 2004.

"How is it that a company can have all these big wrecks and just get more profitable?" wonders Winnipeg-based author Chris Conway, a former brakeman for CP.

Critics — unions, environmentalists and former rail employees — believe the industry accepts derailments as the cost of doing business, that speed is more important than safety.

"When you look at the products they're carrying on the rails — chlorine, anhydrous ammonia, all sorts of dangerous commodities through urban areas — it's scary," says William Brehl, president of the Teamsters Canada Rail Conference, which represents workers who maintain rail lines for CP. "CP Rail has a health and safety policy that is second to none. CP also has inconsistency in the application of their policy. Some managers apply it properly and there are no accidents or incidents on their territory.

"A lot of managers, we believe, put production over safety and don't follow the policy per se."

Some critics also believe even the most dangerous accidents are predictable and preventable. And they're not happy the industry is allowed to write its own rules and rewrite recommendations from the investigating body before accident reports are published.

They see an investigative body lacking force, a regulator too cozy with the railways and an industry that emphasizes profits over safety because there's little or no deterrent when there's an accident.

"The TSB has no teeth," says Rick Evans, a former railway manager and colleague of Smith. "They do by default in the airline industry. If I were to find out the airline was not going to do what the (TSB) recommend, I wouldn't fly with them any more.

"The rail industry is different. ... If you crash a plane, you won't be selling tickets for quite a while. If you crash a train, the shippers keep shipping."

Ian Naish, the TSB's director of rail investigations, says his body is selective in the incidents it chooses to investigate, acknowledging at the same time he had a lot to choose from.

"It was a really bad year last year, especially for main-track derailments," says Naish. There were 215 accidents involving dangerous goods, up from 208 in 2004.

Among the environmental disasters in 2005:

• In January, derailed CN tankers spilled about 60,000 litres of sulphuric acid near Kerwood in southwestern Ontario, the fourth derailment in that spot in 10 years.
• In March, derailed CN tankers spilled nearly half a million litres of heating oil and tens of thousands of litres of a toxic chemical known to cause cancer in Wabamun Lake, killing fish, fouling the water and mucking up the shoreline of the popular resort spot west of Edmonton. CN faces at least two lawsuits from angry residents of the lake and the downstream Paul First Nation.
• In May, another CN derailment in British Columbia leaked caustic soda into the Cheakamus River. B.C. government biologists say the river is dead and it will take 50 years for fish stocks to recover. It's a devastating blow to the 25,000 people who live, work, hunt, fish and recreate in the area, as well as to the First Nations for whom the river is a big part of their spirituality.

"It is like the loss of a family member or part of your body," said Squamish, B.C., resident Edith Tobe. "It is such an integral part of our community. Imagine the Credit River was completely nuked. How would that affect the people of Mississauga, to have a river that no longer has fish?"

Ensuring safety compliance is the job of Transport Canada. During an era of deregulation, the railways slowly chipped away at powers previously held by Transport Canada, which has become more of an auditor of safety reports filed by the railways than inspector of their operations.

"Moving from inspection to audit, it's a whole different approach to safety, and we're encouraged by it," said Jim Kienzler, directory of regulatory affairs for CP in Calgary.

Railways can apply for exemptions, and are allowed to set up their own operating rules. They argue that's necessary because it's the best way to keep up with changing technology.

The railways file safety reports to Transport Canada, basically promising they've been performing the tasks set out in each company's safety management system.

So since 2001, Transport Canada's 150 rail inspectors have spent more time auditing railway safety reports filed by the railways and less time spot-checking rail, car and locomotive safety.

"Once you're done with an audit like that you have a better feel of the safety culture of a company," says Luc Bourdon, director of rail safety for Transport Canada, who declined to say whether he felt either CN or CP had a "safety" culture. "The safety management system is new to everybody. It's new to us; it's new to them. It's a learning experience over time."

But it's a slow — and potentially dangerous — learning curve. Since this protocol was established in 2001, CN and CP — two of Canada's 42 railways accounting for 70 per cent of the country's rail traffic — have been audited by Transport Canada once each.

In fact, at the time of one of this country's worst rail disasters — the collapse of a trestle bridge in McBride, B.C., in May 2003 leading to two deaths — Transport Canada had not audited CN's safety management system, a shortcoming noted in its investigation by the Transportation Safety Board.

"For Transport Canada to do audits and to assess compliance is wonderful, but what happens when a company is out of compliance?" wonders rail critic Stephen Hazell of the Sierra Club.

"Do they go out for coffee? Or is a writ filed? That's the thing.

"As a general matter with respect to environmental law, we do precious little enforcement," Hazell adds. "We do lots of compliance monitoring, lots of hand holding. But public prosecution of offenders doesn't happen very much."

CN paid a $75,000 fine in the McBride incident — not for the deaths of two long-time employees, but for failing to ensure maintenance and inspection records were kept on the bridge, and for not having appropriate records of formal inspections of the bridge in 2001.

"In order to prosecute, we've got to be able to firmly believe there's been a violation of something, a rule, a regulation," says Bourdon.

CN may also face charges for the 2005 environmental disasters at the Cheakamus River in B.C., and Lake Wabamun, Alta. It also faces lawsuits in both provinces.

The Kellachan family of Whitby chose to launch a suit after Kathleen Kellachan and her niece, Christine Harrington of Keswick, were killed by a derailed CP Rail freighter on their way home from shopping in January 2004.

Harrington's car passed under a railway overpass just as the CP Rail freight train, hampered by a broken wheel, passed overhead, derailed and released 14 cargo containers onto Garden St. below.

One of those containers — filled with whisky — dropped onto the car below. Kellachan and Harrington were killed instantly.

Local police and the regional coroner's office investigated, but no criminal charges have been laid. The TSB has yet to issue its report. The family took matters into its own hands and sued CP, ultimately settling out of court.

"I can't tell you the amounts, but I can tell you it wasn't what you think it would be and it certainly wasn't justice for the girls," says Helen Halsall, Kathleen's sister and Christine's aunt. "We certainly didn't get justice for the girls.

"We lost two people. Somebody has to be held accountable. As far as we're concerned, as a family, nobody's been held accountable."

The Transportation Safety Board searches for the cause of an accident. It may make recommendations to prevent such accidents from happening again, but it is powerless to legislate those changes. It is also forbidden from laying blame or pointing fingers.

Before releasing its findings, the TSB circulates a draft report to all involved parties — including the railways — which may ask for changes.

"We have input as an interested party into the findings of the TSB and we have on occasion differed and we have on occasion had them modify their report," says John Dalzell, CN's vice-president of risk management. The collaborative approach gives the TSB report more credibility within the industry, he says.

"The vast majority of the TSB reports — because we have an opportunity to influence the report — we take the reports very seriously."

But they don't necessarily act right away.

On Dec. 30, 1999, two CN crew members were killed when a train derailed near Mont-Saint-Hilaire, Que., and collided with another, spilling 2.7 million litres of hydrocarbons, which caught fire, damaged property and the environment, and forced the evacuation of 350 families.

Among the deficiencies found by the TSB, it noted that CN's paperwork on the dangerous goods carried by the two trains involved was wrong; a car that supposedly had only residue of sodium chlorate was actually loaded with toxic material. When that car was punctured and began leaking in the accident, everyone exposed had to be decontaminated.

Shoddy recordkeeping — needlessly exposing emergency responders and the public to danger — becomes a recurring theme in TSB reports:

• On May 12, 2003, emergency responders weren't aware of three containers with dangerous goods on a derailed train near Drummondville, again because of bad paperwork.
• On Feb. 7, 2004, 27 CN freight cars, including a pressure tank car loaded with chlorine, derailed near Montmagny, Que. Rail and cars were damaged, but there were no injuries or dangerous spills, which was lucky because CN had misidentified the location of the cars with dangerous goods.

TSB investigators have also complained numerous times about outdated data event recorders on locomotives. Unlike "black boxes" on airplanes, built to survive horrific crashes, the railway industry event recorders are often lost if there's a fire. Unlike airplanes, no conversations are recorded on trains.

CN and CP have both said they're taking steps to improve their safety record, including spending more money on rail, track and tie replacement, hiring new employees to maintain and operate equipment and infrastructure, and investing in new, safer technology and in educational programs to improve safety at crossings.

They say it's a myth that on-time delivery trumps safety.

"That does not dominate our culture at all," says CN's Dalzell. "We prefer to stop the train and you inspect. After you inspect and you feel it's safe, then you can proceed. History has demonstrated you're better off to err on the side of caution. We are very risk averse."

While acknowledging that the industry experienced "a spike" in derailments, he said most causes come down to problems with the rolling stock, problems with the rail infrastructure or problems with the people building, maintaining or operating the railway.

Kienzler, CP's director of regulatory affairs, noted an "increase in human factor-related" accidents. Technical problems are easier to fix.

"We're all human. Human behaviour is (becoming) an increasing focus," Kienzler says.

© www.thestar.com 2006