Decision No. 120-R-1995

March 10, 1995

File No. R 8050/537-012.19

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BACKGROUND

Secondary Highway 686 was constructed in 1989 between Highway 35 and the connection with Secondary Highway 688 east of the Peace River. Secondary Highway 686 is parallel to Highway 2. During the logging season, it is used extensively by trucks transporting logs to the Daishowa-Marubeni Peace River Pulp Division Plant. It is also used by some locally generated traffic and, on occasion, by vehicles transporting over-dimensional loads which have to avoid passing through the town of Peace River.

By Order No. 1989-R-71 dated April 4, 1989, the Department of Transportation and Utilities of the Province of Alberta (hereinafter the applicant) was authorized to construct a crossing at grade across the track of the Canadian National Railway Company (hereinafter CN) at the location described above. The cost of constructing and maintaining the crossing was to be paid by CN.

According to a report from Transport Canada dated September 22, 1992, the crossing was inspected on September 16, 1992 by representatives of CN and Transport Canada. It was noted at that time that the paving was completed and that, while road speeds are posted at 100 km/h in the crossing area, heavy trucks were observed at speeds of up to 120 km/h. For this reason and considering past concerns regarding safety, the installation of flashing lights was advised.

By letter dated March 27, 1994, the Minister of Transport approved a grant in the amount of 50 percent of the cost of installation of the automatic protective devices.

By letter dated April 11, 1994, the applicant advised Transport Canada that it accepted the proposed federal grant and that it agreed to share the balance of the overall costs. The applicant also advised that it was prepared to contribute a maximum of 42.5 percent of the cost; however, it considered the offer from CN to be unreasonable and it was of the view that CN should be contributing more than the 7.5 percent offered. It further recommended that the National Transportation Agency (hereinafter the Agency) determine the costs to be paid by CN. With regard to the operating and maintenance charges, the applicant will contribute the normal 50 percent share of the costs.

POSITION OF CN

CN notes that train crews have requested that automatic protection signals be installed at the subject crossing for safety purposes. The speed limit for vehicular traffic is 80 km/h and the train speed limit is 56 km/h. CN train crews have reported, however, that the speeds at which some logging trucks approach the subject crossing would not allow the trucks to stop safely before reaching the crossing surface. Truck traffic and increased vehicular traffic (850-900 per day) also account for safety concerns. Railway traffic at this crossing consists of one train per day.

In its submission to the Agency dated September 26, 1988, CN proposed that the applicant be responsible for all costs of any necessary improvements to the protection at the new location within the first three years of its existence. The above condition was based on the road surface being an unimproved road, i.e. a gravel surface. However, the subject roadway has been paved within the three-year period, subsequently allowing for faster traffic on the roadway.

CN maintains that because the change in the roadway surface has allowed faster traffic, it will solely be the responsibility of the applicant to provide suitable safety improvements to the crossing. However, as there has been a commitment from Transport Canada to provide funds towards the improvements, CN agrees to contribute towards the costs in accordance with the usual cost sharing formula, that is, 7.5 percent of the cost of installation of the signals and 50 percent of the cost of future maintenance of the crossing warning system.

Should the cost sharing formula not be acceptable to the applicant, CN proposes alternative safety measures, such as the installation of speed bumps on the road surface on both approaches to the subject crossing, the erection of stop signs at the crossing and the enforcement of these signs.

CN further points out that contrary to the statement of the applicant, the majority of concerns have in fact been voiced by local residents.

POSITION OF THE APPLICANT

Throughout the existence of the subject crossing, CN train crews have consistently requested the installation of automatic protective devices at this crossing. The ongoing safety concern has been that, due to the size of log trucks, a collision between a train and a log truck could result in a derailment and seriously threaten the safety of the train crew. Snow, occasional fog, slippery pavements, truck noise and speed are all identified as factors which may increase the probability of a collision.

During winter, with frozen ground conditions, log trucks may have a mass of up to 65,000 kg. During the summer, the gross vehicle mass may reach 62,500 kg.

Recent traffic counts indicate an average of 555 vehicles per day, on an annual basis, and approximately 850 to 900 vehicles per day during the winter peak hauling period.

The installation of crossing protection signals will benefit the road authority by reducing the probability of collisions between trains and vehicles, reduce or eliminate public perceptions of danger, reduce the amount of sight line maintenance required, and support the overall safe transportation system objectives.

The applicant argues that the speed limit of 50 km/h, the installation of stop signs and rumble strips suggested by CN would be dangerous in a rural setting and would cause a major inconvenience to traffic. Higher frequency of rear-end and run-off road type collisions can be expected, resulting in other traffic safety problems.

The applicant also states that CN should understand that there are no practical alternative methods of resolving the safety concerns and that extra expenditures are necessary to help protect the company investment in human resources and railway equipment. Consequently, a contribution by CN of approximately 15 percent of the total cost would seem reasonable.

AGENCY FINDINGS AND CONSIDERATIONS

Section 16 of the Railway Safety Act states that where a proposing party in respect of a proposed railway work and each other person who stands to benefit from the completion of the work cannot agree on the apportionment between them of the liability to meet construction, alteration, operational or maintenance costs in respect of that work, the proposing party or any of those persons may, if no recourse is available under the Railway Act, R.S.C., 1985. c. R-3 or the Railway Relocation and Crossing Act, R.S.C., 1985, c. R-4 refer the matter to the Agency for a determination.

In this case, both parties involved have been unable to reach an agreement on the apportionment of costs for the installation of the automatic protective devices at the subject crossing. The applicant has therefore referred the matter to the Agency for a determination.

The Agency notes that, although the crossing may not meet Transport Canada's criteria for installation of automatic warning signals, Transport Canada recommended the installation of the automatic protective devices due to the type and the speed of truck traffic and the potential for derailment. The Minister of Transport approved a financial contribution of 50 percent towards the installation of the automatic protective devices.

After consideration of the rail and highway traffic counts at the crossing, the Agency is of the opinion that as both parties will benefit from the automatic signal protection, both parties should share the costs associated with the installation and maintenance of the said signal protection. However, as most of the benefit will accrue to the applicant, and as the requirement for the protective devices is primarily due to the particular characteristics of the highway traffic at this location, the Agency considers that a contribution of 7.5 percent by CN towards the cost of installation of the automatic signal protection at the crossing is appropriate.

Therefore, the Agency determines that 7.5 percent of the cost of the installation of the automatic protective devices shall be paid by CN and the balance, after application of the federal grant, by the applicant. The cost of maintaining the automatic protective devices shall be shared equally by both parties.

An order to this effect will be issued.