Decision No. 14-R-2023

January 27, 2023

Application by the Greater Vancouver Sewerage and Drainage District (GVSDD) against BNSF Railway Company (BNSF) and the Canadian National Railway Company (CN) for authorization to construct and maintain a utility crossing

Case number: 
22-02174

Summary

[1] GVSDD has applied to the Canadian Transportation Agency (Agency) for authorization to construct and maintain a utility crossing, namely a sewage wastewater pipe (proposed overhead sewer), at mileage 145.96 of the BNSF New Westminster Subdivision in the City of Burnaby, British Columbia.

[2] The Canada Transportation Act (CTA) enables the Agency to authorize the construction of suitable utility crossings, to specify who will be responsible for their maintenance and to apportion the cost of construction or maintenance of utility crossings when the parties are unsuccessful in negotiating an agreement related to these matters.

[3] The Agency will address the following issues:

  1. Does the Agency have authority under the CTA to decide the application?
  2. Should the Agency authorize GVSDD to construct and maintain the proposed utility crossing? If so, what terms and conditions should be ordered?

[4] For the reasons set out below, the Agency finds that it has authority to decide the application.

[5] The Agency authorizes GVSDD to construct and maintain the proposed overhead sewer at its expense. No terms or conditions are required in this case.

Background

[6] GVSDD is incorporated under the Greater Vancouver Sewerage and Drainage District Act. GVSDD’s objects include the construction, maintenance, operation and administration of the District’s major sewerage and drainage facilities.

[7] The North Road Trunk Sewer pipe (North Road Sewer) currently collects sewage wastewater from a catchment area in Burnaby and Coquitlam, and conveys that wastewater south to the Annacis Island Wastewater Treatment plant in Delta. To convey the wastewater to the treatment plant, the North Road Sewer must cross the New Westminster Subdivision.

[8] An existing 300 mm overhead sewer pipe (existing overhead sewer) forms part of the North Road Sewer which crosses the New Westminster Subdivision. At the proposed crossing location, the North Road vehicle bridge (vehicle bridge) also crosses the New Westminster Subdivision. The proposed overhead sewer would replace the existing overhead sewer.

[9] The proposed overhead sewer would be approximately 7.5 metres above the tracks and consist of a PVC pipe of 630 mm outside diameter with a pipe wall thickness of 18 mm and with an estimated flow capacity of 0.6 cubic metres per second, approximately six times the capacity of the existing pipe. The new pipe would be housed inside a 900 mm diameter galvanized steel casing pipe and would be attached to a utility truss bridge, which is attached to the abutments on the west side of the vehicle bridge. Certain overhead communication lines (overhead lines) at the crossing location must be relocated underground so as not to obstruct the construction of the proposed overhead sewer.

[10] The existing overhead sewer is governed by an agreement concluded in 1959 (1959 agreement) between BNSF and GVSDD.

[11] The parties have been unsuccessful in reaching an agreement to allow construction on the proposed overhead sewer to proceed.

[12] Pursuant to the Memorandum of Understanding entered between the Agency and Transport Canada (TC), which allows for a coordination of efforts related to road, utility and private crossings within federal jurisdiction between the Agency and TC, a copy of the application was sent to TC for comments on safety-related matters. TC replied on May 23, 2022, that it has no safety advice or input regarding the crossing, reiterating that it must be constructed and maintained in accordance with applicable requirements of the Railway Safety Act (RSA).

Preliminary matters

BNSF’s request to file additional submissions

[13] On May 10, 2022, BNSF filed a request under the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (Rules) to file additional submissions as it argues that GVSDD raised new issues and arguments in its reply without filing a request to do so, all contrary to the Rules. GVSDD opposes BNSF’s request.

[14] The additional submissions relate to whether the replacement of the pipe for the proposed overhead sewer should be considered to be “construction”, or “replacement” or “repair”; to the applicability of Agency decisions construing the words “maintenance” and “repair”; and to the applicability of other jurisprudence construing the words “maintenance” and “repair”. These additional submissions would not advance the proceedings or assist the Agency in making its decision. The Agency, therefore, denies BNSF’s request.

Which railway company has obligations under the CTA

[15] In its application, GVSDD named both BNSF and CN as respondents but it is unclear from the record which railway company has obligations under the CTA for the New Westminster Subdivision as this is the railway which will be bound by the Agency’s authorisation to construct the utility crossing.

[16] On one hand the evidence shows that BNSF is the owner of the railway line and, on the other hand, CN is requiring that GVSDD sign an access agreement as if CN were operating the railway line. Therefore, the Agency issued Decision LET-R-30-2022 asking for clarification on the matter as to which railway company operates the New Westminster Subdivision and has the obligations under the CTA.

[17] The information provided by the respondents in response to Decision LET-R-30-2022 shows that BNSF and CN are parties to a running rights and joint track usage agreement for the New Westminster Subdivision. The agreement allows CN to operate on the New Westminster Subdivision. However, BNSF confirmed that it is the owner and operator of the New Westminster Subdivision and that it has all the obligations under the CTA with respect to this subdivision. Accordingly, any authorization for a utility crossing would apply to BNSF as it is the owner and operator of the New Westminster Subdivision.

CN’s procedural request

[18] On August 30, 2022, CN filed a request asking that the Agency ignore the portion of GVSDD’s reply that deals with CN, specifically with the access permit matter. While the question of an access permit pertains to the RSA and is independent of the Agency’s authority, this is not a sufficient argument to strike out the portion of the reply that deals with CN. The information in GVSDD’s reply is relevant and keeping it on the record assists the Agency in its decision-making process. In addition, no party will be prejudiced by keeping the information on the record.

Does the Agency have authority under the CTA to decide the application?

[19] As noted above, the proposed overhead sewer would replace the existing overhead sewer.

[20] BNSF states that since 1959, the Great Northern Railway Company (Great Northern), its predecessor and GVSDD have been parties to the 1959 agreement in which GVSDD was granted permission to maintain and operate a 12-inch sanitary sewer pipe crossing the New Westminster Subdivision. This sanitary sewer pipe is the existing overhead sewer. BNSF argues that this agreement governs the proposed works which BNSF characterizes as maintenance and repairs, and that the Agency, consequently, does not have jurisdiction to authorize the proposed overhead sewer.

[21] In this case the 1959 agreement relates to placing and maintainingthe pipe, and it refers to future repairs but does not contemplate the reconstruction of the crossing. Accordingly, in order to determine whether the Agency has jurisdiction over this matter, it should evaluate if the proposed work qualifies as maintenance under the 1959 agreement or not.

[22] In Decision 105-R-2004, the Agency found, at paragraph 35:

The Agency is of the opinion that maintenance means those ongoing works necessary to keep a facility in good repair and in an as-constructed condition, while reconstruction means building again to a higher standard, qualitative change, modification, improvements and/or alterations that add to the value or improve the original design of the structure.

[23] In Decision 476-R-2000, the Agency stated:

While it is understandable and may be efficient to carry out other crossing rehabilitation work when installing new rail joints, the Agency is of the opinion that since the capacity or design of the crossing has not changed, this work does not constitute construction or reconstruction but merely maintenance to the crossing.

[24] In this case the old pipe is being replaced with a new one of greater diameter to be built to higher standards such as current seismic design standards. It will also be built with a corrosion-free plastic pipe as compared to the existing steel pipe which is prone to corrosion, and the new PVC pipe will be housed in a steel casing to maintain structural integrity and ensure better protection of the sewer beneath the utility truss bridge. This type of work goes beyond works necessary to keep a facility in good repair and in an as-constructed condition. It involves upgrades to the pipe to meet a higher standard, qualitative change, modification, improvements and alterations and, as such, clearly qualifies as a reconstruction.

[25] As the 1959 agreement does not contemplate the reconstruction of the utility crossing, the Agency finds that it has authority under the CTA to decide the application.

2. Should the Agency authorize GVSDD to construct and maintain the proposed utility crossing? If so, what terms and conditions should be ordered?

[26] GVSDD states that the proposed overhead sewer will allow for the continued provision of essential wastewater conveyance and treatment for the businesses and growing population of the catchment area, which currently has approximately 15,000 residents. It also states that the proposed overhead sewer will be more durable, less prone to breaches during an earthquake, and better able to deal with capacity pressures compared to the existing overhead sewer.

[27] GVSDD agrees to pay for the cost of construction and maintenance of the proposed overhead sewer and for the design and construction of the undergrounding of the overhead lines. It holds that no additional terms and conditions should be imposed, and GVSDD is not bound by terms or concessions it made during negotiations that did not result in an agreement.

[28] BNSF states that it has no technical or safety objections to the proposed overhead sewer.

[29] BNSF seeks to have the application dismissed. If it is not, BNSF seeks to include the terms and conditions as per the Utility Crossing Agreement proffered by GVSDD on October 26, 2020.

Analysis and determinations

[30] The Agency may authorize the construction and maintenance of the utility crossing under subsection 101(3) of the CTA if it finds it to be suitable. As the Federal Court of Appeal stated in Fafard v Canadian National Railway Company, 2003 FCA 243, a suitable utility crossing is one that is adequate and appropriate for the purposes for which it is intended and installed, meeting the needs of those using the crossing and those of railway operations. The suitability of a crossing also includes an element of safety.

[31] The purpose of the proposed overhead sewer is the provision of essential wastewater conveyance and treatment. GVSDD provided detailed design drawings and TC indicated that it had no safety-related concerns. BNSF does not dispute the suitability of the utility crossing including the undergrounding of the overhead lines.

[32] The Agency therefore finds that the proposed overhead sewer is suitable within the meaning of the utility crossings provisions of the CTA to provide wastewater conveyance and treatment to the residents and businesses of the catchment area and for railway operations.

[33] The Agency authorizes GVSDD to construct and maintain the proposed overhead sewer and to underground the overhead lines as related works. GVSDD has agreed to pay for the construction and maintenance of the proposed overhead sewer as well as the undergrounding of the overhead lines. Therefore, the Agency will not apportion the cost of the construction or specify which party shall maintain the crossing.

[34] The parties have been unsuccessful in negotiating terms and conditions for an agreement to construct the proposed crossing. BNSF seeks inclusion of the terms and conditions proposed in the draft crossing agreement, primarily relating to access, safety and communication, in any Agency crossing order.

[35] As set out in Decision 7-R-2022, the Agency has the power to order terms and conditions that are directly related to, and necessary for, the construction and maintenance of a utility crossing. In CONF-R-12-2022, the Agency did not impose the railway’s preferred terms respecting liability and other essentially economic matters as being extraneous to the issue at hand. In this case, the Agency finds that this principle is valid for the same reason and will not include terms and conditions in its authorization as none of the terms sought by BNSF relate directly to, or are necessary to accomplish, the construction or maintenance of the utility crossing.

Access to the land on which the railway line is located for the purpose of constructing a crossing

[36] CN requires GVSDD to obtain an access permit before GVSDD can construct the proposed overhead sewer and states that this document contains provisions primarily to ensure safety and compliance with the RSA. CN argues that the CTA does not grant the Agency the authority to make an order authorizing GVSDD to access a railway line whenever GVSDD chooses.

[37] GVSDD argues that the Agency’s jurisdiction to authorize the construction and maintenance of a crossing includes the jurisdiction to authorize access to a railway line without the need for an access permit from the railway company, contrary to CN’s argument. GVSDD states that it is already required to comply with safety requirements under applicable provincial and federal legislation.

[38] Although the questions or the work permit mostly address issues related to the RSA, the Agency will still address the issue of access to the land on which a railway line is located as part of an authorisation to either construct and maintain a road or utility crossing.

[39] First, it is important to note that the RSA prohibits unlawful access to land on which railway line work is situated. The Agency’s authorisation to construct a crossing provides a lawful excuse to a person to enter land on which railway line work is situated for the purpose of constructing a crossing.

[40] That said, the Agency’s authorization should not be interpreted as providing GVSDD with a blanket authorisation to enter that land at any time without the knowledge of the railway companies operating on that line of railway.

[41] Accordingly, GVSDD must coordinate with BNSF as the owner and operator of the New Westminster Subdivision which should in turn also coordinate with CN, given that CN has running rights, in order to ensure the safety of railway operations during the construction of the utility crossing.

Conclusion

[42] The Agency authorizes GVSDD, at its expense, to construct and maintain the proposed overhead sewer at mileage 145.96 of the New Westminster Subdivision in the City of Burnaby, and to underground the overhead lines.


Legislation or Tariff referenced Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 101(3); 101(1); 102; 100; 101; 5
Greater Vancouver Sewerage and Drainage District Act, SBC 1956, c 59 3
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 34; 20(2)
Railway Safety Act, RSC 1985, c 32 (4th Supp) 26.1

Member(s)

Mark MacKeigan
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