FALL 2020 REPORTS OF THE CESD

05 Nov FALL 2020 REPORTS OF THE CESD

FALL 2020 REPORTS OF THE CESD

 A FOCUS ON THE TRANSPORTATION OF DANGEROUS GOODS IN CANADA

The Commissioner of Environment and Sustainable Development (CESD) recently released her Fall 2020 Reports.  There are three Reports:

• Report 1: Follow-up Audit on the Transportation of Dangerous Goods;
• Report 2: Departmental Progress in Implementing Sustainable Development Strategies; and
• Report 3: Environmental Petitions Annual Report.

The following provides an overview of each report.  Perhaps the most substantive of the CESD’s 2020 reports is the first which documents outstanding concerns with the transportation of dangerous goods in Canada. Concerns with the transportation of dangerous goods were raised in previous CESD reports (2011 and 2015) and, while some progress has been made, there are still problems.

Many of these problems centre on the failure to ensure compliance with legislative and regulatory requirements.  While the CESD report focuses on the failure to ensure compliance in the transportation of dangerous goods, in our view this problem is not limited to that sector (see for example Martin Olszynski and Alex Grigg on fisheries enforcement and compliance).

A key component of any regulatory regime is effective monitoring and enforcement – without these the regulatory rules will not accomplish what they should.  Effective monitoring and enforcement cannot occur unless there is sufficient dedication of resources (money, people, and data collection mechanisms).  Without a focus on collecting data, as a baseline and ongoing during the life of an activity, there cannot be effective monitoring for the sake of enforcing regulatory requirements. Further, given that regulatory approvals often are subject to numerous conditions (often addressing environmental matters), these need to be easily accessible to the public, as should data collected.  Where there is systemic failure to effectively monitor and enforce regulatory requirements, the regulatory regime is undermined.  This can lead to occurrence of the environmental harm meant to be avoided or controlled by the regulatory regime.

Follow-up Audit on the Transportation of Dangerous Goods

The CESD audit “focused on the extent to which Transport Canada and the Canada Energy Regulator implemented recommendations from [the CESD’s] 2011 and 2015 reports regarding these organizations’ compliance and enforcement responsibilities for the safe transportation of dangerous goods” (section 1.11).  The audit also focused on whether Transport Canada  and the Canada Energy Regulator “followed up with companies that had contravened regulations to ensure the companies returned compliance, among other things” (section 1.11).

The CESD found that Transport Canada had made some improvements since the 2011 audit but that there was “still important work to be done” (section 1.14).  For example, Transport Canada failed to follow up on some violations or to grant final approval to many emergency response assistance plans.  As well, although a national risk-based system was put into place to prioritize inspections, the underlying data was incomplete or outdated.

One of Transport Canada’s functions is to “conduct inspections at rail, marine, road and air facilities and building where dangerous goods a re manufactured, stored or received” (section 1.17). There may be violations of legislation in terms of documentation, training, labelling, or packaging/containers.  In the case of violation, Transport Canada inspectors can require corrective actions and are expected to follow-up to ensure that companies return to compliance.  If there is no return to compliance, inspectors may take other enforcements actions such as detaining goods.

The CESD found that, although there had been some improvements since the 2011 audit, there were still outstanding problems to be addressed. In particular, the department “did not always follow up on violations identified through inspections to ensure they had  been addressed” (section 1.19) about 30% of the time (section 1.30).  Further, although a national risk-based process to target inspections was implemented, it was based on “incomplete and outdated information” (section 1.19) and had design flaws which leads to understating of risks (section 1.26).  Transport Canada also does “not have enough information to know whether certain facilities that manufacture, test, or repair containers for transporting dangerous goods …were operating with valid certifications” (section  1.19).

As a result of this 2020 audit, the CESD recommends that Transport Canada:

• improve and update its tools and databases to have more complete and accurate information on regulated companies, including compliance status (section 1.27),
• systematically track and document its verification that companies have returned to compliance after violations (section 1.33),
• ensure that containment facilities with expired certificates are not conducting activities for which the certificates were issued (section 1.34), and
• strengthen its processes for collecting data to better identify the national rate of regulatory compliance in the transportation of dangerous goods (section 1.41).

Another function of Transport Canada is the review of emergency response assistance plans that are prepared by companies transporting dangerous goods.   Transport Canada is meant to verify that the plans comply with the Transportation of Dangerous Goods Act, 1992 and its regulations.  Under this Act, companies are required to have an “approved emergency response asistance plan prior to handling, offering for transport, transporting or  importing certain quantities or concentrations of certain dangerous goods” (section 1.18).

The CESD found that Transport Canada “had not finished its work to grant final approval of many companies’ plans to respond to emergencies” (section 1.19).  The CESD found that 21% of  plans (194) had only interim approval.  Of these, 70 had interim approval for more than 3 years, 22 had interim approval for more than 10 years and 1 plan had interim approval for 20 years (section 1.44).  Transport Canada is failing to meet its internal timelines for finalizing its  approval of interim plans (section 1.45).

The CESD recommends that Transport Canada should finalize its approval of interim emergency response assistance plans by completing necessary investigations (section 1.48).  It should also ensure that approvals for future plans are finalized within prescribed timelines.  As well, the CESD recommends that Transport Canada develop “national guidance and criteria for assessing firefighting  capacity for plans related to flammable liquids” (section 1.48).

With respect to the Canada Energy Regulator, the CESD found that since the 2015 audit of the oversight of federally regulated pipelines, the Regulator had largely implemented the 3 recommendations (which were audited again  in the 2020 report).  This means that the Regulator has improved its compliance oversight.  Compliance oversight has improved due to implementation of an “information management system to improve the tracking and documenting of its compliance oversight activities” and improvement of “its verification that regulated companies had taken corrective action to address non-compliance” (section 1.15). However, the database is still missing evidence in terms of  the Regulator’s assessments of companies’ document in support of meeting pipeline approval conditions.

In many cases, the approval for a pipeline is subject to a variety of conditions, often relating to environmental  concerns.  Conditions may require operational practices designed to mitigate environmental damage,  require monitoring and reporting to be conducted, require inventories of water bodies or other habitat, and so forth. The CESD found that the Regulator’s database often had  incomplete information on whether a condition had been met.  As well, the CESD found the Regulator “did not always document its analysis of how companies satisfied their pipeline approval conditions” (section 1.65).  As such, the CESD recommends that the Regulator document “its analysis of companies’ submissions about how pipeline approval conditions have been satisfied” (section 1.61).

Departmental Progress in Implementing Sustainable Development Strategies

This report summarizes the CESD’s findings on departmental progress in meeting the Federal Sustainable Development Strategy goal of Safe and Healthy Communities: All Canadians live in clean, sustainable communities that contribute to their health and well-being. This goal includes:

• improving air quality,
• protecting Canadians from harmful substances, and
• preventing environmental emergencies or mitigating their impacts,

and is supported by 10 contributing actions (such as leadership on assessing and remediation contaminated sites, use of legislation to address outdoor air pollutant emissions and harmful substances, supporting voluntary action to reduce outdoor air pollutant emissions).

The CESD audit looked at 12 federal department and agencies including Agriculture and Agri-Food Canada, Environment and Climate Change Canada, and Parks Canada.  The CESD assessment is based upon the individual departmental strategies and progress reporting.

Overall, the CESD found that reported activities “largely supported the actions set out for this goal in the government’s Federal Sustainable Development Strategy” (section 2.12).  However, the CESD did find that, at times, reporting was unclear or incomplete “making it difficult for …Canadians to gain a clear sense of overall progress against the goal” (section 2.12).

The CESD found that none of the departments audited expressly reported activities around 3  contributing actions related to outdoor air quality:

• provide in-kind support and funding to reduce outdoor air pollutants,
• invest in technologies to improve air quality, and
• support voluntary action to reduce outdoor air pollutant emissions.

Although, the CESD noted that Transport Canada did indirectly report on the last contributing action.  For the remaining 7 contributing actions, the departments and agencies audited collectively reported some actions that “will help achieve the federal targets and goal” (section 2.22).  The CESD recommends that all departments and agencies responsible for achieving the goal of safe and healthy communities should ensure that their sustainable development strategies support all contributing actions outlined in the Federal Sustainable Development Strategy.

Environmental Petitions Annual Report

An environmental petition process has been established under the federal Auditor General Act and is implemented by the Commissioner of Environment and Sustainable Development.  The environmental petitions process allows any Canadian resident (either individually or on behalf of an organization) to bring environmental concerns to the attention of the federal government. An environmental petition is submitted to the Office of the Auditor General who forwards the petition to the appropriate Ministry. The Minister is required to respond to an environmental petition within 120 days of its receipt.

The number of petitions, the subject-matter of the petitions and the status of the petitions is  reported on annually by the CESD. Within the audit period covered by the Report (July 1, 2019 to June 30, 2020), 16 environmental petitions were submitted. The petitions addressed a wide variety of issues including the use of social cost of carbon values and using ISO standards to measure greenhouse gases, single-use plastics in waters and reduction of plastic pollution, and concerns with the use of various chemicals.

The CESD report highlights that the environmental petitions website has been updated.  There is a new Environmental Petitions Submission Form and a revised Petitions Catalogue for viewing past petitions.  The website also contains guidance on the submission of environmental petitions.

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