US Rail Safety After East Palestine

• Unsafe and broken safety regimes threaten the rail sector in Canada while undermining work for members.
• Campaign on rail safety is necessary after large gaps between American and Canadian rail regulatory regimes have become clear.

The East Palestine rail disaster in 2023 opened-up a public view to the declining investment in rail safety and operations by rail companies that put communities at risk.

Even during the disaster information was not flowing from the contractor to the emergency responders and vent, flare, and burn actions were not needed.

The response was a move to do a comprehensive review of USA rail legislation. While many of these initiatives have been stalled because of the dysfunction of the American political system, the proposed changes have been partially implemented through the regulator.

The USA's FRA has moved to unannounced inspections. An evidence based regulatory review process requiring companies to submit data showing changes to regulations are net positive to the industry have been adopted.

The cuts to the regulatory apparatus in the USA has affected its ability to police the rail sectors' violation, but it is so substantially larger than Canada, it still does not come close to the low level of intervention here.

Transport Canada's orientation to rail regulation is very permissive and controlled by applications by the two main rail companies.

Rail profits from CN and CPKC are driven by the (made in Canada) "Precision Railroading" operations program of limiting investment in upgrades and expansion of the system, lengthening trains, and cutting workers who operate and maintain the service.

Canadian rail companies are also engaged in a constant aggressive deregulation campaign both in the rail sector, lowering of taxation, and eliminating the right to strike in federally regulated supply chains.

CN and CPKC exploit Canada's light regulatory regime for regulatory arbitrage. There is a long history of the development of lower regulations in Canada and then exported to the USA.

This has hit a wall after public East Palestine disaster investigations exposed the very thin margin for error, secrecy, and regulatory capture that rail inspection and operations are operated to drive for profits for shareholders.

There is now a large regulatory divergence appearing between Canada and the USA. The concern is that while Canada relies on American research for regulations in a harsher environment, Canada still has lower regulatory oversight.

The Canadian rail companies have used their regulatory capture of Transport Canada to drive a North American-wide deregulation program. This has resulted in companies operating in a thin margin between safe and unsafe operations. Major accidents are the result.

Derailments in Canada an injuries are, in total count, low because of the vastness of Canada's transport infrastructure. However, several large scale incidents in the USA have lead to a public focus there the sector.

In Canada, incidents get investigated, reports are filed, and then it seem subsequently ignored by Transport Canada. At the same time, operations and regulatory personnel either cut or not growing at the rate of growth in the sector.

The recent rejection by the FRA of currently used automated wayside and inspection systems in Canada is troubling, but should not surprise anyone. Neither should the response from the rail industry, which has been to double-down on the demands for continued Canadian deregulation and automation of the maintenance through the use of clearly unsafe operation systems.

The regulatory capture by the companies of Transport Canada is clear. There are no unannounced inspections, there are Ministerial exceptions of regulations to test these systems in the public instead of demanding data that they work, and continued exceptions even though faults are identified.

Further, the lack of regulation has a compounding effect. Workers doing inspection and maintenance in the industry have no regulatory backup when they seek to their jobs well. Identifying faults or issues that should be addressed can be ignored without regulatory consequence, undermining even regular human inspection.

The review of the technology by the FRA have clearly outlined that there are physical limits of the technology and does not replace human inspection.

Two things need to happen to re-establish trust in the industry:

1. Government regulatory oversight needs to follow the new American model of unannounced inspections, increased fines, and an evidence-based regulatory system.
2. New proprietary inspection (wayside and portals) technology needs to be regulated and geared towards augmenting human inspection and maintenance crews.

Unifor should engage in a campaign to bring these new facts around regulation divergence and safety to the public. The goal should be to put pressure on the government to fund the re-regulation of the industry to a level that provides safe rail travel for Canadians and workers in the industry.