Decision No. 21-R-2015

APPLICATION

[1] Patricia Kealy, representing herself and 15 other persons (applicants), filed an application with the Canadian Transportation Agency (Agency) against the BNSF Railway Company (BNSF) concerning vibrations arising from BNSF’s operations in East Beach West Beach and Crescent Beach along the New Westminster Subdivision railway line in White Rock, British Columbia.

[2] The applicants allege that BNSF is violating its statutory obligations under section 95.1 of the Canada Transportation Act (CTA). They claim that the vibrations generated by BNSFʼs coal trains cause adverse impacts such as damage to their houses, sleep disturbance, impacts on health and lifestyle, and shaking and rattling inside their homes.

PRELIMINARY MATTER

[3] The applicants raise concerns relating to railway safety, property values, slope stability (landslides), emergency response plans, dangerous goods, coal dust, creosote, diesel fumes, particulate matter, and disturbance to waterfowl. As these matters are outside the scope of section 95.3 of the CTA and not within the Agency’s mandate, the Agency will not consider them in this Decision.

ISSUE

[4] Is BNSF meeting its obligation under section 95.1 of the CTA to cause only such vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the local area?

CONTEXT

[5] It is useful to review the elements the Agency considers to determine whether a railway company is or is not complying with its statutory obligations under section 95.1 of the CTA. The Agency applies a two-part test when evaluating a noise and/or vibration application.

[6] The first part of the test relates to “substantial interference”. It requires the Agency to determine whether an applicant has established that they experience substantial interference caused by the noise and/or vibration that is part of the railway operations or construction. The burden is on an applicant to satisfy the Agency that they are experiencing substantial interference.

[7] As noted in paragraph 51 of 35-R-2012">Decision No. 35-R-2012 :

Within the context of the CTA, but recognizing the value of, and applying, jurisprudence flowing from the law of nuisance, the Agency must first determine the existence of noise and/or vibration which constitute substantial interference with the ordinary comfort or convenience of living according to the standards of the average person (substantial interference). If the Agency finds that the noise and vibration is not causing substantial interference, there is no need to pursue the analysis further. If the Agency does find that the noise and vibration is causing substantial interference, that leads to another level of analysis by the Agency, namely a balancing of the noise and/or vibration against the criteria set out in section 95.1 of the CTA to determine whether, in that context, the noise and/or vibration is reasonable, failing which remedial mitigation measures can be ordered by the Agency.

[8] If an applicant is not able to establish, on a balance of probabilities, that they are experiencing substantial interference, the Agency will dismiss the application without further investigation. If an applicant establishes substantial interference, then the Agency proceeds to the second part of the test.

[9] The second part of the test relates to “reasonableness”. In the Agency’s Guidelines for the Resolution of Complaints concerning Railway Noise and Vibration (Guidelines), published by the Agency and available on its Web site, the Agency offers the following explanation of part two of the test:

The Agency determines what is “reasonable” noise or vibration taking into consideration all of the elements mentioned above and the jurisprudence regarding what is “reasonable”. Reasonableness is determined on a case-by-case basis and relates to an objective sense of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances.

[10] The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations consistent with its obligation to cause only such noise or vibration as is reasonable given its railway operations and/or construction. Overall, this balance is inherent in the statutory requirement that the allowable noise and/or vibration be only that which is reasonable.

[11] If the Agency determines that the noise and/or vibration from railway operations is reasonable, the Agency is required to dismiss the application.

[12] Alternatively, if the Agency determines that the noise and/or vibration is not reasonable, it may order a railway company to undertake any change in its railway operations that the Agency considers reasonable to comply with section 95.1 of the CTA.

RELEVANT STATUTORY PROVISIONS

[13] Section 95.1 of the CTA imposes an obligation on a railway company to cause only such noise and vibration as is reasonable, taking into account:

• its obligations under sections 113 and 114 of the CTA, if applicable;
• its operational requirements; and,
• the area where the construction or operation takes place.

[14] Section 113 of the CTA details the level of service a railway company must provide to its customers for services such as the loading, unloading, transportation and delivery of merchandise.

[15] Section 114 specifies a railway company’s obligations regarding the transfer of merchandise from its railway to that of other railway companies, the return of rolling stock of other companies and the obligation, where a railway forms part of a continuous line with the railway of another company, to maintain the continuous line of transportation.

[16] A railway company’s operational requirements include not only those operations necessary to effectively run a railway, but also any statutory or legal obligations under other legislation such as the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) [RSA].

[17] The area affected by railway construction or operation encompasses those residential, institutional and commercial establishments in close proximity to the railway construction or operation.

CONCLUSION

[18] For the reasons set out in greater detail below, the Agency determines that some of the applicants have established that they experience substantial interference from the vibrations caused by the operation of coal trains over the subject line of railway by BNSF. Some of the applicants live in houses, or operate commercial businesses in buildings, that are located right across the street from a main line of railway operated by one of the largest railway companies in North America. The Agency therefore reviewed the manner in which BNSF operates its trains, including the coal trains to which the applicants take particular exception, and finds that the vibrations are reasonable in the context of section 95.1 of the CTA.

[19] The Agency determines that BNSF is conducting its railway operations, including the operation of coal trains, in accordance with all applicable legislative and operational standards. The Agency has no jurisdiction in the context of this application to order BNSF to remove and relocate its line of railway, one of the primary remedies sought by the applicants. As the Agency finds no violation of section 95.1 of the CTA by BNSF, the Agency dismisses the application.

BACKGROUND

[20] The applicants’ 15 residences/businesses are located in White Rock, in proximity to BNSF’s railway line which runs along the beach in White Rock, around the Semiahmoo Peninsula (which is part of the city of Surrey, British Columbia) from approximately mileage 120 to 128. The distance between the applicants’ residences and the railway right-of-way ranges from 21 metres to over 300 metres. The applicants have lived in their residences for three to 20 years.

[21] White Rock is comprised of commercial and residential areas in proximity to the railway line. Marine Drive, the main commercial tourist street in White Rock, runs parallel to the railway line and the beach. The residential area runs up the hill behind this street.

[22] BNSFʼs trains carry coal, construction and building products, agricultural products, consumer and construction waste, chemicals, and finished automobiles. BNSF carries the coal from the United States of America through White Rock, Surrey, and other parts of the lower mainland to terminals in British Columbia, for shipment overseas.

[23] The New Westminster Subdivision is situated along the western edge of the Semiahmoo Peninsula. It is the main line between the Canada-United States of America boundary at Blaine, Washington and Vancouver, British Columbia. The section around the Semiahmoo Peninsula is single-tracked, and the track consists of continuously welded rail (CWR) without turnouts, switches or joint bars except for a very short, seldomly used siding south of White Rock, just north of the international boundary. The track is currently used by Amtrak passenger trains.

[24] From mileage 120, the railway line follows the shore of Semiahmoo Bay and crosses the Campbell River before reaching four pedestrian crossings used to access East Beach between mileages 121 and 122. From mileage 122, the line continues along the shoreline until it reaches a bridge over the Nicomekl River, just past Crescent Beach between mileages 127 and 128. This section also contains five public at-grade road crossings, with two in White Rock (between mileages 122 and 123) and three at Crescent Beach (between mileages 125 and 128). The speed limits from mileages 120 to 128 range from 15 mph to 35 mph. Due to safety concerns with pedestrians, there is currently an order by Transport Canada reducing freight train speeds along the beach front from 35 mph to 21 mph.

POSITIONS OF THE PARTIES

The applicants

[25] The applicants state that they do not have an issue with the vibrations caused by the Amtrak passenger trains as they do not have many cars and the total weight does not seem to shake their houses. With respect to BNSF, however, the applicants hope that the proposed expansion of the Fraser Surrey Docks (the largest modern, multi-purpose marine terminal on the west coast with a direct transfer coal facility) does not go ahead “as it will mean a huge increase in vibrations that we are experiencing”.

[26] The applicants state that since coal trains started a couple of years ago, the vibrations have increased tremendously, especially during the evenings through to the early mornings. The applicants claim that as a result, “more people are being shaken awake from their sleep”. The applicants assert that the volume, frequency, weight and length of the coal trains have increased, and coal trains are usually 128 cars long with four or five locomotives. The applicants point out that CWR was installed approximately three years ago.

[27] The applicants submit that coal trains pass during all hours of the day and night, three to four times per day, typically lasting five to eight minutes. Some applicants assert that there are 15 to 20 trains per day. The applicants claim that as of late there have been as many as three trains in a three-hour period between midnight and 3:00 a.m. Some applicants claim that there are up to three trains in one-half hour. The applicants are of the opinion that the posted speed limit of 35 kilometres per hour (21 mph) is too fast considering the heavy loads the trains are carrying.

[28] The applicants claim that the degree of vibration or shaking is directly proportional to the speed at which the trains are travelling, along with the length and weight of the trains. The applicants allege that they have noticed “clunky” wheels on the trains.

[29] The applicants contend that they are virtually prisoners in their houses, as they have to keep the windows and doors closed, must sleep with ear plugs, take sleeping pills/sedation, and sleep at the back of their houses, if possible.

[30] One of the applicants, Judy Baker, who is the owner of the Sandpiper Pub, maintains that she has to remove pictures from the walls as they fall off with the heavy shaking from the coal trains. Pam and Tim King claim that the shaking causes bookshelves to knock against the wall, their bed to shake and the pictures to bang.

[31] The applicants submit that the vibrations have caused a major sewer pipe running adjacent to the BNSF railway line in Crescent Beach to leak, and a water main on the Semiahmoo First Nations land to break.

[32] In support of their arguments, the applicants filed photos showing apparent structural damage and “liquefaction” at various locations in the area. The applicants also provided a document from the University of California, Berkeley indicating that damage to structures and facilities may result from different seismic effects, direct and indirect. The direct effects from the vibration of soil include liquefaction, differential settlement, and landslides.

[33] In addition, the applicants filed letters of support from the:

• Mayor of the City of Surrey, Dianne Watts, who acknowledges their concerns and encourages more consultation with local stakeholders.
• Mayor of the City of White Rock, Wayne Baldwin, who states:

[…] the increased number of trains, their weight, and their length not only cause excessive vibrations from our homes, but also will ultimately trigger a failure of the steep slopes on the west side of White Rock and the Crescent Beach area in Surrey.

Furthermore, the coal trains typically have about 140 cars, and are approximately 3.5 km in length. The 1995 Transport Canada ruling on train speed requires the train to maintain a reduced speed of 21 mph until the lead locomotive reaches the limit of the beachfront. The train then very quickly accelerates to 35 mph. With a train that is 3.5 km long, this means that most of the train for the majority of the passage across our waterfront is actually travelling at 35 mph not 21 mph.

• Member of the Legislative Assembly of Surrey-White Rock, Gordon Hogg, who indicates that he would support “a consultation process that the community and our three levels of government could be involved in”. He also states that the “[…] slides may well be attributed to the longer, heavier trains passing through our community”.

[34] Some applicants filed video evidence and testimony:

• Gladys Rai claims that the vibrations are causing damage to her home. Her home is 24 years old. She is concerned about the cracks in the driveway and garage. Ms. Rai provided video evidence showing the claimed damage. She is also worried about the cracks on her walls and the water leaks. She noticed that the cracks have progressed over the years. She has been taking medication to help her sleep. Because the trains have significantly affected her quality of life, she is hoping that something can be done to reduce the number of trains or relocate the trains.
• Marie-Louise Hanna indicates that she has lived in her home for 15 years. She has seen the number of trains increase significantly. Some of the trains have double decker rail cars. She is concerned about cracks in the foundation and the rattling in her house. The continuous waking up at night “is not helping her health”. Her health has progressively worsened over the past two years.
• Dianne Lyric states that she has lived in her home for four years. She is awoken by the trains at least once a night. The sleep disturbance makes her tired during the day. There are a couple of new cracks on her walls and ceiling, which have become significantly worse over the past two years. The shaking seems like an earthquake and during train events, pictures on the walls shake. Ms. Lyric filed video evidence showing the claimed damage.

[35] The applicants submitted a study on continuous vibrations prepared by the California Department of Transportation in Sacramento, California entitled the Transportation Related Earthborne Vibrations (TREV Report).

[36] The applicants refer the Agency to pages 10 to 19 and items two and three of page 28 of the TREV Report:

• A summary of vibration levels and reactions of people and the effects of vibrations on buildings in Table 2 shows the threshold at which there is virtually no risk of “architectural” damage to normal buildings to be 2.5 mm/s or 0.1 in/sec. According to Table 2, this same threshold is when vibrations begin to annoy people.
• Elderly, retired, or ill people staying mostly at home, people reading in a quiet environment, people involved in vibration sensitive hobbies or other activities are but a few examples of people who are potentially annoyed by much lower levels of vibrations. Most routine complaints of traffic vibrations come from people in these categories. To them, even vibrations near the threshold of perception may be annoying.
• Low level traffic vibrations can cause irritating secondary vibrations, such as a slight rattling of doors, windows, stacked dishes, etc. These objects are often in a state of neutral equilibrium and readily respond to very low levels of vibrations. The rattling sound gives rise to exaggerated vibration complaints, even though there is very little risk of damage.
• If vibrations at the receptor are readily noticeable and appear to interfere with activities or vibration sensitive operations, the problem can be considered severe.
• If vibrations of any amplitude are at issue in litigation, consider the problem severe.

[37] Dr. Carlos Ventura, Professor and Director of Earthquake Engineering Research Facility at the University of British Columbia (UBC), conducted two vibration studies for the applicants. The studies are discussed in more detail in the Vibration Reports section below.

• Assessment of Vibration Levels in Houses Induced by Train’s Traffic in White Rock, B.C. dated November 2012 (2012 UBC Report); and,
• Assessment of Vibration Levels in Houses Induced by Train Traffic in White Rock, B.C. dated August 2014 (2014 UBC Report).

[38] The applicants filed a letter from Transport Canada (TC) dated May 31, 2012, in response to Russ Hiebert (Member of Parliament, South Surrey, White Rock, Cloverdale), in which TC indicates that:

• Their mandate under the RSA is to oversee the operation and maintenance of railway equipment and the maintenance of the railway infrastructure;
• TCʼs inspections did not result in finding any deficiencies relative to the rules and regulations of the RSA;
• The weight limits and speed limits for freight trains have not been increased; they continue to be within the limits prescribed in the operating manual for that particular railway subdivision;
• TC’s inspectors monitor the condition of the track structure through inspections within their track assessment vehicle. The most recent inspection conducted on April 10, 2012 showed no geometric exceptions to the rules. BNSF ran its geometry testing vehicle over the track. However, there were some exceptions noted regarding the condition of the ballast at several locations on May 18, 2012 and no geometric exceptions were noted. A TC Rail Safety Inspector was present during this inspection as well;
• BNSF has since responded that it intends to repair the locations to bring them into compliance with TC’s Rules Respecting Track Safety and to decrease the speed of the train traffic until such time as the work is completed;
• Where the ballast conditions at several locations are reaching a point where some form of major ballast restoration program will be required, BNSF has indicated that it has plans for such a program in its capital budgeting horizon; and,
• Train vibrations are not a concern to slope stability immediately adjacent to the tracks and are not a safety concern to railway operations and not an issue TC would pursue.

[39] Mr. and Ms. Kealy maintained a log of train events from February 16, 2012 to May 17, 2014. Over the two-year period, Ms. Kealy recorded the date, time, and strength of vibrations for each train event. Her rating method is based on a subjective star system, from one to three stars, with three stars meaning “really strong shaking”. It is noted that the number of “really strong shaking” (three stars) events occur more frequently into 2013 and especially in 2014.

[40] The applicants propose several solutions to reduce vibrations, which include:

• American coal be diverted to an American port;
• Reroute railway traffic to another line; and,
• Reduce the weight, length, and speed of the coal trains.

[41] In addition, the applicants propose that the BNSF railway line be relocated to a different location as a potential remedy. The applicants claim that the City of Surrey and the City of White Rock came up with four alternative locations for a relocated railway line inland. The applicants state that they are confident that the parties would take into account that the best alternative would be one in the least populated area and away from a fragile seaside location with slopes that become saturated and unstable.

[42] Furthermore, the applicants state that Dr. Ventura suggests that the following strategies be considered:

• the implementation of a monitoring system to ensure that the vibration levels do not exceed acceptable standards of residential comfort;
• the implementation of mitigation measures at the existing railway line until relocation of the line is achieved;
• the enforcement and control of excessive vibrations; and,
• obtaining the contact name and number of the person taking responsibility.

BNSFʼs answer

[43] BNSF points out that BNSF and its predecessors have continuously owned and operated the railway line along the beach at White Rock and around the Semiahmoo Peninsula since 1909. BNSF adds that residential and commercial developments in proximity to the railway line have grown over the years. BNSF states that the traffic on the railway line is pass-by traffic, and in normal operations, trains do not stop in the White Rock area except for the occasional southbound train at the Canada-United States of America border.

[44] BNSF maintains that beginning in 2010, the volume of coal moving over the line has increased due to customer demand. BNSF adds that since the end of the recession, freight and passenger traffic on the line has averaged 12.1 trains a day (2010 to 2014 total freight and passenger traffic increased from 10.3 to 13.1, respectively).

[45] BNSF indicates that in the early years, White Rock was considered a cottage or recreational community but over the years, residential areas of White Rock have been occupied by full-time residents. BNSF submits that in recent years, the older, modest residential properties have been replaced with modern, more expensive homes. BNSF states that the Kealys are among those who have replaced a cottage with a new home.

[46] BNSF states that it has no alternative route for this traffic. BNSF points out that it has a branch line in northern Washington to the Canada-United States of America boundary at Sumas, Washington, where it connects with the Canadian Pacific Railway Company (CP) line in Huntington, British Columbia. BNSF adds that this line is used to interchange cars with CP and the Southern Railway of British Columbia Ltd. (SRY) at this location. This line is unsuitable for the rerouting of traffic that passes through White Rock for a number of reasons including the fact that it ends at the border and does not connect to Vancouver. BNSF states that through an agreement with SRY, it is rerouting empty coal trains over this line to accommodate a track renewal project on the Bellingham Subdivision which connects to the New Westminster Subdivision at the Canada-United States of America boundary.

[47] BNSF claims that the Proximity Guidelines and Best Practices, a report jointly published by the Federation of Canadian Municipalities and the Railway Association of Canada, establish that a setback of 300 metres is the recommended minimum noise influence area to be considered when assessing the location of new residential areas near mainline rail corridors.

[48] BNSF states that the Agency has previously expressed its opinion that municipal governments have a responsibility to assess compatibility issues before approving housing development along a railway right-of-way and to ensure that necessary mitigation measures are implemented (see 69-R-2014">Decision No. 69-R-2014, at paragraph 57).

[49] BNSF argues that provided a railway company only creates such noise and vibration as is reasonable, home buyers and builders who know or ought to know of an existing railway line nearby should have an obligation to satisfy themselves, before buying or building, that they will not be unduly disturbed by that noise and vibration.

[50] BNSF states that according to the U.S. Federal Transit Administration’s Transit Noise and Vibration Impact Assessment (May 2006) [FTA Guide], for freight trains operating at 50 mph, one would expect vibrations to be barely perceptible by human feel beyond 150 feet of the track centreline (see page 10-3).

[51] BNSF states that according to the application, Mr. and Ms. Kealy feel vibrations at 1,020 feet from the BNSF track with trains operating at speeds substantially below 50 mph. However, BNSF points out that none of the applicants reside within 150 feet of the line with the exception of Mr. Lauder, who lives in Crescent Beach across the road from the line, and Ms. Valentine, owner of Holly’s Poultry in Motion. BNSF also points out that the Hollyʼs Poultry in Motion and the Sandpiper Pub are both on Marine Drive in White Rock on the other side of the street from the railway line. BNSF argues that the experience of the applicants is at odds with what would be expected applying the FTA Guide criteria. BNSF maintains that a large part of the evidence provided by the applicants therefore represents their own perceptions of vibration and is not based on objective criteria.

[52] BNSF claims that the geotechnical report dated February 13, 2012 provided by Mr. and Ms. Kealy to the City of White Rock to address seismic concerns related to landslides did not show any anomaly.

[53] BNSF retained Geotechnical and Environmental Consultants Shannon & Wilson Inc. (S&W) of Seattle, Washington, to advise on the 2012 UBC Report and 2014 UBC Report. S&W provided peer reviews dated:

• November 1, 2013, a review of the 2012 UBC Report (S&W 2013 Peer Review of the 2012 UBC Report); and,
• August 21, 2014, a review of the 2014 UBC Report (S&W 2014 Peer Review of the 2014 UBC Report).

[54] The results of the peer reviews are discussed in more detail in the Vibration Reports section below.

[55] BNSF points out that a number of applicants have self-identified as elderly or retired. BNSF makes reference to the TREV Report which suggests that elderly, retired or ill people are potentially annoyed by much lower vibration levels.

[56] BNSF refers again to the section in the TREV Report that states that rattling sound gives rise to exaggerated vibration complaints, even though there is very little risk of structural damage.

[57] BNSF states that some of the concerns of sleep interruption due to vibrations are coupled with concerns about train whistling (applicants Lauder, Baker, Mr. Kealy, and the Kings). BNSF is of the opinion that given the low levels of vibration detected by UBC, it seems unlikely that vibration could be waking these individuals. BNSF suggests that it is much more plausible that they wake due to whistling and then notice either the minor vibrations or the noises in their homes caused by the vibrations. BNSF maintains that there are important safety reasons why whistling takes place in White Rock. BNSF submits, however, that whistling is not within the scope of this application before the Agency.

[58] BNSF maintains that there is no medical evidence submitted by the applicants that supports the link between their sleeping problems and train vibrations. Without this, it is impossible to rule out other possible causes for their sleep difficulties. BNSF contends that without medical evidence that rules out other possible causes of the sleep problems experienced by these residents, the evidence of medical treatment of sleep interruption due to vibrations provided falls well short of proving on a balance of probabilities that these problems are caused by vibrations from BNSFʼs trains.

[59] BNSF points out that the vibration levels experienced and measured by UBC are 3.5 to 10 times less than the levels required to cause property damage according to the authorities cited by S&W. Rather, as S&W explained, the minor cracking and cosmetic damage identified by the applicants are much more likely explained by building settlement, seasonal weather changes and other normal factors:

Cosmetic cracks, spalls or other signs of distress have developed in the buildings over time. Such minor cracking and cosmetic damage to residential structures is often caused by natural factors, such as building settlement, shrinkage cracks caused by seasonal and daily changes in humidity and temperature, and wind or other transient loads. Fluctuations in groundwater level and changes in soil moisture content often cause cracks in foundations and walls related to settlement and heave. Furthermore, the width and extension of existing cracks occurs over time as a result of temperature induced strains. Some temperature induced strains have been shown to be equivalent to vibration levels of 3.0 inches per second or 75 mm/ sec (Siskind and others, 1980; Konya, 2008).

[60] BNSF submits that the dissatisfaction of the applicants concerning other issues related to BNSF may have resulted in a relatively minor disturbance of vibration being perceived as a major concern. BNSF adds that the concerns about vibration causing disturbances to sleep and property damage simply have not been proven, and it is more likely that these disturbances have other causes. BNSF argues that the relatively minor inconvenience of infrequent rattling of household effects (which can be easily mitigated with simple measures) is not, in and of itself, evidence of substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.

[61] BNSF maintains that the empirical evidence produced by UBC and analyzed in part by S&W does not support any claim of substantial interference. The vibration levels experienced by the applicants are below the 85 VdB level, are of a short duration, and occur infrequently.

[62] BNSF submits that the applicants have not established on a balance of probabilities that there is substantial interference with the ordinary comfort or convenience of living according to the standards of the average person due to vibrations from BNSFʼs trains at White Rock and Crescent Beach based on the:

• applicantsʼ magnified sensitivity to the presence of the railway line in their community due to a host of factors unrelated to vibrations leading to an inadvertent exaggeration of the significance of vibrations in their homes;
• distance at which the majority of applicants reside from the track;
• absence of evidence to support any finding of serious harm to persons or property from vibrations; and,
• evidence of minimal vibrations provided by the two UBC Reports.

[63] BNSF points out that based on the Agency’s jurisprudence on noise and vibration complaints, without substantial interference, there is no basis for the Agency to find that the vibrations experienced are unreasonable.

[64] BNSF maintains that the level of vibration produced by its operations is reasonable considering its level of service obligations to its customers, its operational requirements and the area in which its operations take place.

[65] BNSF states that it does not control how much traffic is carried on its lines. BNSF claims that, rather, rail transport is a derived demand; that is, a demand created by activity in the sectors of economy in which BNSF’s customers operate. BNSF adds that as the economy changes, so do trade routes and the nature of the commodities transported. BNSF asserts that the amount and type of traffic on the New Westminster Subdivision is a function of traffic tendered by BNSF’s customers.

[66] BNSF states that the New Westminster Subdivision is an important and integral part of its network and it is vital to Canada’s trade and to the economy of the lower mainland of British Columbia. BNSF adds that its service also provides vital rail competition to the Canadian National Railway Company (CN) and CP and opens up lanes for Canadian goods that would not exist in the absence of this line. BNSF states that limiting this traffic would force it to curtail its activities on this line, its only line between Vancouver and the United States of America, and decline service that it is obliged to provide. BNSF asserts that it has no other route for this rail traffic.

[67] BNSF states that its customers determine how much traffic moves on its lines. According to BNSF, it has moved export coal and related products traffic through the Roberts Bank coal terminal since 1970 when it was constructed. BNSF submits that due to changes in market conditions, coal shippers have found an increased demand for their products over the past few years in the Pacific Rim. BNSF maintains that this has led to an increased demand for service from all railway companies serving Roberts Bank, including BNSF. BNSF states that beginning in 2010 and stabilizing at current levels in 2011, it has transported increased amounts of coal and related products on the New Westminster Subdivision for its customers.

[68] BNSF asserts that it has a level of service obligation towards this traffic, and any forced limitation in coal traffic would result in BNSF being unable to fulfill this obligation.

[69] BNSF submits that the activities on the New Westminster Subdivision in White Rock only create such vibration as is reasonable considering BNSFʼs operational requirements. BNSF states that the track at White Rock and around the Semiahmoo Peninsula is the main line through track constructed with CWR and is in good condition and inspected in accordance with regulatory and internal BNSF standards. BNSF claims that its locomotives and cars are maintained consistent with regulatory and industry standards. BNSF adds that its trains do not normally stop or switch cars near the areas claimed to be affected by vibrations. BNSF asserts that trains operating through the White Rock beach already travel at speeds that are substantially lower than those that would be permitted by the condition of the track, thereby further minimizing vibrations.

[70] BNSF claims that a large part of the application seems based on the false premise that the line is not suited to handle the “heavy traffic,” particularly the “heavy coal trains. BNSF states that, in fact, this line is engineered and maintained to safely accommodate the loads carried over it. BNSF points out that the track in White Rock, like most mainline track in North America, is designed to carry rail cars with an industry standard total weight of 286,000 lbs. BNSF indicates that the weight bearing capacity of railway lines is standardized, among other things, so that loaded rail cars can easily be interchanged with other railway companies. BNSF states that while the makeup of BNSF’s traffic may have changed over the years as a function of changes in the economy, since the end of the steam era, diesel powered freight trains of varying length and makeup have passed the beach in White Rock all carrying, when feasible and necessary due to customer demand, the maximum engineered weight permitted.

[71] BNSF also submits that the activities on the New Westminster Subdivision in White Rock only create such vibration as is reasonable considering the area in which BNSF operates. BNSF states that the city of White Rock and Crescent Beach are built-up areas. BNSF adds that in the beginning, it was the existence of the railway line, like many places in Canada, that allowed these communities to develop. BNSF points out that residents chose to settle near the railway line because it was convenient to do so. BNSF maintains that today residents continue to choose the White Rock area for its many benefits, chief among them, its proximity to the ocean. BNSF indicates that the proximity of rail to residential property in White Rock means that some impact is inevitable. BNSF points out that the impact on it is the ongoing risk to life caused by inattentive trespassers and pedestrians, which has led to restrictions on operational speeds and efficiency. BNSF also submits that for residents, it means accommodating a reasonable level of noise and vibration that comes from train operations and being careful when walking near the track. BNSF points out that Ms. Kealy herself acknowledged in her original January 2013 application that residents living near railway lines expect some noise (although in her case, there is more noise than she expected).

[72] BNSF claims that it is not unusual for railway and port facilities to exist at or near shorelines and centers of population, and this is especially true in the lower mainland of British Columbia. BNSF states that both CN and CP have extensive rail facilities which cover the waterfronts of Vancouver and North Vancouver and the shorelines of the Fraser River and Burrard Inlet. BNSF argues that the Agency must be careful not to set a precedent that would impair the utility of railway lines in places where residential development already exists close by. BNSF also states that as idyllic as White Rock is, it is not unique in having residential development near active and busy railway lines, especially in British Columbia.

[73] With respect to the applicants’ request for a railway line relocation, BNSF states that:

If the [applicants] are serious about removing the line from White Rock, they should be aware that Canadian law provides a means to do so. Among other things, this law requires that a railway which is moved be kept financially whole in the transaction. BNSF is open to having discussions with local officials about moving the line, provided this principle is respected.

Applicants’ reply to BNSF’s answer

[74] The applicants state that they moved into their homes or built their homes knowing that there were approximately four Amtrak trains and 13.1 freight trains per day. However, according to the applicants, at the time, these trains were much shorter in length and likely weighed much less as there were fewer locomotives used to pull those trains. The applicants claim that the vibrations from those freight trains were felt by residents, but were not intolerable. The applicants contend that this all changed in 2010-2011 when there was a significant increase in coal train traffic and the trains were much longer (some up to 200 cars) and some vibrations were very strong, often mistaken for earthquakes by the applicants. The applicants assert that had they known the changes were coming, they may not have moved into or built their homes.

[75] The applicants filed two correspondence from Dr. Ventura in response to S&W’s peer reviews dated:

• November 24, 2013, a response to the S&W 2013 Peer Review of the 2012 UBC Report; and,
• August 28, 2014, a response to the S&W 2014 Peer Review of the 2014 UBC Report.

[76] These correspondence are discussed in more detail in the Vibration Reports section below.

[77] With respect to BNSF’s comment on the FTA Guide, Dr. Ventura submits that it is a fact that geological conditions can significantly affect the propagation of waves and that the ground vibrations could be higher at distances of two to three times the normal distance. Dr. Ventura points out that the problem is more complex than simply making reference to a single chart in a document.

[78] The applicants claim that 50 percent of them are neither retired nor over the age of 65. They indicate that they live very active lives, working at their careers and raising families. The applicants contend that the vibrations caused by heavy freight trains disturb the sleep of working men and women as well as children.

[79] According to the applicants, Dr. Ventura indicates that BNSF’s assertions that the empirical evidence produced by UBC and analyzed by S&W does not support any claim of substantial interference and the vibration levels experienced by the applicants are of a short duration and occur infrequently are incorrect and misleading, and are not supported by the correct interpretation of the vibration data. BNSF’s allegation that the vibration levels are reasonable is inconsistent with the data which shows that a good number of BNSFʼs trains cause vibration levels which are beyond “reasonable”.

[80] The applicants claim that the significant increase since 2010 in the frequency and length of the freight trains, and number of locomotives in those trains passing through the White Rock‑Crescent Beach corridor has resulted in vibrations and noise at levels that disrupt their sleep and adversely affect their health, well-being and enjoyment of their homes.

[81] The applicants request the Agency to direct BNSF to:

• commit to identifying or developing solutions (mitigation measures), within a reasonable time frame, to reduce the intensity of vibrations from freight trains; and,
• design and implement, in collaboration with a team of independent experts and Transport Canada, an adaptive management plan to regularly and frequently monitor and assess the effectiveness of those solutions (mitigation measures) and to develop alternative solutions (mitigation measures) in the event that any solutions implemented are determined not to effectively reduce the intensity of vibrations from freight trains.

Vibration Reports

[82] As stated previously, the applicants’ filed the 2012 and 2014 UBC Reports. In its answer, BNSF filed the S&W 2013 Peer Review of the 2012 UBC Report and the S&W 2014 Peer Review of the 2014 UBC Report. In response to BNSF’s answer, the applicants filed two correspondence from Dr. Ventura to address S&W’s peer reviews. These documents are discussed below.

2012 UBC Report

[83] The Earthquake Engineering Research Facility of the UBC (UBC-EERF) conducted vibration measurements of train pass-bys in White Rock in June and July of 2012. Five sensors were placed at various setback distances from the railway line.

[84] The Report did not specify exactly the dates on which the vibration measurements were taken; however, it indicates that 22 vibration events occurring between June 27 and July 3, 2012 were analyzed. The recorded events were then compared to the criterion for human comfort in residences specified in the American Institute of Steel Construction Inc. (AISC) Design Guide 11. The criterion provides a chart that specifies peak acceptable acceleration levels from 1 Hz to 40 Hz, with the most stringent levels between 4 to 9 Hz at 0.005 g. The Report concludes that the peak accelerations of 21 recordings exceed the acceptable levels of human comfort.

S&W 2013 Peer Review of the 2012 UBC Report and Dr. Venturaʼs response to the S&W 2013 Peer Review

[85] BNSF retained S&W to advise it on the 2012 UBC Report. S&W analyzed the recorded data upon which the 2012 UBC Report was based and concluded that of the 180 hours of recorded data provided by UBC, the number of exceedances of the peak acceleration level of 0.005 g considered unacceptable in accordance with the standard used by UBC was 2.69 seconds. BNSF contends that this strongly suggests that any vibration experienced by the applicants is minimal.

[86] S&W came up with the identical number of exceedances as what was found in the 2012 UBC Report and recommended that a drift correction be applied.

[87] In response, Dr. Ventura clarified that his team had in fact completed a drift correction and the offset in the data was because S&W had received the “raw data”. Dr. Ventura then explained what he considers to be the flaws in S&W’s assumptions and method.

[88] The applicants state that with respect to BNSF’s reference to 2.69 seconds of vibration being minimal, Dr. Ventura argues that this assertion is misleading because S&W simply added the number of exceedances of acceleration above the threshold level without taking into account the actual total duration of the vibrations caused by the train. The applicants add that Dr. Ventura claims that S&W is “playing with the mathematics of the problem” as the amount of time a house vibrates when a train is passing is over 200 seconds; but not all of that time is the threshold exceeded. The applicants point out that in some cases the threshold is exceeded just a few times, in other cases 50 times and in one case over 350 times. The applicants add that in the 2012 UBC Report, significant vibrations lasted between two and 14 seconds.

[89] With respect to BNSF’s re-assessment of the 2012 UBC Report data, Dr. Ventura states that the procedure (methodology) used by S&W to come up with its results is questionable and has not been peer-reviewed.

2014 UBC Report

[90] The applicants filed a draft version of the 2014 UBC Report on June 17, 2014and a final version on August 5, 2014.

[91] The UBC-EERF conducted vibration measurements of train pass-bys in White Rock from March 25 to 27 and March 30 to April 3, 2014. Five sensors were placed at various setback distances from the railway line. The 2014 UBC Report indicates that based on the FTA Guide, people perceive vibrations at 65 VdB and are strongly annoyed at 85 VdB. The results on page 6 of the Report indicate that the vibrations ranged between 64 VdB and 85 VdB, thus indicating that the trains caused annoying vibrations at some of the residences where the measurements were conducted.

[92] The 2014 UBC Report concludes that the maximum peak particle velocities (PPV) at all receptor locations were measured below 4 mm/s. However, because humans do not respond immediately to PPV, a comparison to root-mean-square (RMS) values is generally preferred. Contrary to the results, the conclusions on page 6 indicate that the “vibration levels were generally above 65 VdB threshold of perception for humans, which indicates that the occupants of these residences would have noticed the passage of the trains, but not annoyed by it. This confirms some of the residents’ reactions during the testing period, where no significant vibration was felt by some of them”. [emphasis added]

S&W 2014 Peer Review of the 2014 UBC Report and Dr. Venturaʼs response to the S&W 2014 Peer Review

[93] S&W made statistical inferences from the recorded data. In response, Dr. Ventura indicates that S&Wʼs statistical calculations are not relevant to this problem because what needs to be addressed is why some trains operated by BNSF cause annoying vibrations at the residences in White Rock.

[94] BNSF states that to verify the applicants’ claim that vibrations were less during the 2014 testing than during the 2012 testing, S&W reassessed the 2012 UBC Report data. BNSF indicates that S&W found no event of 85 VdB or greater during the 2012 testing and most events were under the 75 VdB threshold between barely perceptible and distinctly perceptible. BNSF asserts that on average, the vibration level was below the “distinctly perceptible” threshold 93 percent of the time. BNSF also points out that the highest PPV vibration level recorded in 2012 was less than the highest PPV of 3.67 mm/s reported by UBC in the 2014 testing. BNSF concludes that the 2012 vibration levels as measured by UBC were no higher, and likely less, than those experienced during the 2014 testing.

[95] BNSF claims that none of the highest vibrations experienced at any of the test locations in the 2014 UBC Report exceeded the 85 VdB threshold. BNSF further asserts that out of a total of 380 sensor opportunities, approximately one half of one percent of trains met the 85 VdB level. The highest level of vibration in the tests was experienced at a location whose occupant is not a party to the application.

[96] BNSF points out that vibrations experienced at the Lauder and Guertner residences were lower than the 75 VdB level considered to be the threshold between barely perceptible and distinctly perceptible vibrations. BNSF adds that only the Valentineʼs business and residence experienced vibrations above 75 VdB.

[97] BNSF indicates that the applicants and UBC explain the low levels of vibration detected in the 2014 study by inferring that rail traffic was lower during the 2014 tests. BNSF argues that there was no statistically significant difference in the number of trains, train length, tonnage and number of locomotives per train during the test period than before or afterward. BNSF concludes that the facts do not support less train traffic during the test period and that the better explanation is that actual vibrations are lower than what the applicants believe. BNSF states that any further analysis of the 2014 UBC Report results was precluded by the absence of usable data from the 2014 tests.

[98] S&W states that there is only a low percentage of potential opportunities (receptors which could potentially be impacted by vibrations) exceeding 85 VdB at 100 feet from the track, and that for comparison purposes, the Kealy residence is located 1,000 feet from the track.

[99] Dr. Ventura states that geological conditions of the area have a significant effect on how the vibrations induced by a passing train propagate through the ground. Dr. Ventura claims that it is well known that vibrations that propagate through the ground can be amplified at significant distances from the source of the vibrations. Dr. Ventura adds that this explains why it is possible to successfully measure vibrations of lower amplitude at sites near the sources than those at sites far away from the source.

[100] Dr. Ventura states that he has concerns about the validity of the information presented in Table 1 of S&W’s 2014 Peer Review. He argues that because of the lack of clarity on how the numbers in this Table were obtained or generated, it is not possible for the UBC-EERF to agree or disagree with the results presented.

[101] S&W conducted additional analysis based on the PPV to evaluate human comfort. Dr. Ventura argues that the PPV is not an appropriate way to evaluate level of comfort of humans to vibrations.

[102] S&W compares maximum PPV to the U.S. Bureau of Mines Report of Investigation – R.I. 8507. Dr. Ventura points out that the standards used by S&W were developed more than 30 years ago specifically for “structure response and damage produced by ground vibration from surface mine blasting”. Dr. Ventura indicates that S&Wʼs use of the UBC information is incorrect as the tests to determine damage would require different sensors and different placement of the sensors. Dr. Ventura states that UBC did not use the vibration data to make any inferences related to structural damage. According to Dr. Ventura, it is unclear why S&W is suggesting that such an approach may be appropriate.

[103] The applicants assert that according to Dr. Ventura, the tests carried out by UBC-EERF provide clear evidence that certain types of trains create disturbances to occupants of homes in the study areas.

ANALYSIS AND FINDINGS

[104] As previously mentioned, the initial step in the analysis of noise and/or vibration applications is to determine the existence of noise and/or vibration and whether it constitutes substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.

[105] To make a determination on the existence of noise and/or vibration that may constitute substantial interference for the applicants, the Agency will consider the elements outlined below. These elements are set out in the Agency’s Guidelines and in 35-R-2012">Decision No. 35-R-2012.

[106] These elements include the:

• characteristics and magnitude of the noise or vibration (such as the level and type of noise [impulse or constant], the time of day, the duration, and the frequency of occurrence);
• relevant noise or vibration measurements or studies conducted in the area affected;
• impact of the noise or vibration disturbance on the persons affected; and,
• relevant standards to assess the significance of the effects of noise and vibration levels.

[107] This application relates only to vibrations created by BNSFʼs coal trains. Therefore, the first step is to determine if the vibrations from BNSFʼs coal trains are causing substantial interference. If there is no substantial interference, there is no need to pursue the analysis further.

Substantial interference

[108] The applicants raised concerns with respect to potential increased vibrations as a result of the proposed expansion of the Fraser Surrey Docks. The applicants contend that overall rail traffic will increase in the future. However, this is speculative and therefore, the Agency may only consider the current traffic volumes in its assessment of this application. This is consistent with the legislative framework established for applications related to vibration concerns..

Review of BNSFʼs arguments

[109] BNSF indicates that the experience of the applicants is at odds with what would be expected when applying the FTA Guide criteria. The Agency is of the opinion that in this case, BNSF’s use of the generalized ground surface vibration curves to determine 150 feet as an acceptable distance to the railway tracks (page 10-3 of the FTA Guide) is incorrect as it did not apply any adjustment factors like speed, geological conditions, etc. Therefore, the Agency finds that BNSF’s use of the FTA Guide vibration curves is inconclusive.

[110] BNSF states that home buyers should be aware of the existing railway line and should satisfy themselves, before buying or building, that the vibrations will not be unduly disturbing. BNSF refers to 69-R-2014">Decision No. 69-R-2014 where the Agency stated that the municipal governments have a responsibility to assess compatibility issues before approving housing development. The Agency is of the opinion that BNSF’s argument is out of context. In 69-R-2014">Decision No. 69-R-2014, the case related to an individual who purchased his newly constructed home next to a railway line where operations, from the time he purchased his home, never changed. In this case, the applicants have issues with the increase in coal trains as demonstrated in Ms. Kealyʼs records of trains from 2012 to 2014 which show that “really strong shaking” events occurred more frequently in 2013 and especially in 2014.

[111] BNSF maintains that a large part of the evidence provided by the applicants represents their own perceptions of vibrations and are not based on objective criteria. However, the Agency notes that the applicants filed two vibration reports from UBC along with photos, videos and various documents to substantiate their claims.

[112] S&W’s estimate that the applicants experienced high vibration levels for only 2.69 seconds is, in the Agency’s opinion, oversimplified and misleading because it fails to account for the actual duration of the vibrations caused by the entire train event. Therefore, S&W’s finding that the exposure time is “minimal” is not accepted. The method used to derive its conclusion is, in the Agency’s opinion, not commonly used in industry standard practice. For example, the FTA Guide quantifies impacts based on exceedance of a threshold rather than duration over the threshold.

[113] Dr. Ventura points out that geological conditions play an important role in the propagation of vibrations, and explains that it is possible to successfully measure vibrations of lower amplitude at sites near the sources than those at sites far away from the source. BNSF did not dispute this fact, nor did it provide any comments in this respect. The Agency accepts that geological conditions may play a very important role in the propagation of vibrations. As indicated in the FTA Guide, the propagation of ground-borne vibrations can be higher because:

Experience with ground-borne vibration is that vibration propagation is more efficient in stiff clay soils, and shallow rock seems to concentrate the vibration energy close to the surface and can result in ground-borne vibration problems at large distances from the track. Factors such as layering of the soil and depth to water table can have significant effects on the propagation of ground-borne vibration.

[114] Therefore, the Agency is of the opinion that some of the applicants may be experiencing vibration levels that are higher than what would be expected in typical soil conditions.

[115] S&W explains that the highest PPV of 3.67 mm/s reported by UBC is 3.5 to 10 times less than the levels required to cause property damage. However, the Agency notes that UBC vibration measurements focused on assessing human comfort and not structural damage. Therefore, the Agency considers that S&W’s use of the UBC data and its comparison to structural damage criteria is incorrect. The Agency finds that BNSF’s statement that the vibration levels are multiple times less than the levels required to cause property damage is not properly substantiated.

[116] BNSF filed the FTA Guide with its answer. The document makes reference to international vibration standard ISO-2361-2 for the effects of vibrations on people in buildings with ratings related to annoyance and interference with activities. The standard outlines two different criteria for residential dwellings during the day and night, with the night being more stringent. The more stringent night criteria infer that humans have an added sensitivity to vibrations during the night, while sleeping. The standard states that: “Experience has shown in many countries that complaints regarding building vibrations in residential situations are likely to arise from occupants of buildings when the vibration magnitudes are only slightly in excess of perception levels.”

Analysis of the 2012 UBC Report

[117] The 2012 UBC Report states that five vibration sensors were installed at four different locations (two in the same location). One sensor was installed at the King residence (Sensor 3) and two sensors were installed at the Kealy residence (first and second floors, Sensors 1 and 2 respectively). The other two locations were not at the applicants’ residences.

[118] The 2012 UBC Report indicates that the vibration levels exceeded the AISC criteria for human comfort. The Agency notes that although the Kealy residence is significantly farther away (more than twice the distance) from the railway line, the results reveal higher vibration levels and a slightly higher number of exceedances at the Kealy residence. The Agency is of the opinion that the higher vibration levels could likely be a result of 1) geological conditions resulting in efficient soil propagation, as noted by Dr. Ventura, and 2) specific structural resonances at the Kealy residence.

[119] In BNSF’s review, the UBC data was analyzed and compared to the FTA Guide. BNSF states that 75 VdB is considered to be the threshold between barely perceptible and distinctly perceptible vibrations. In its analysis, BNSF confirms that of the 22 events that were identified by UBC-EERF, three events were above 80 VdB, which is consistent with UBC’s findings that the vibrations are perceptible.

[120] Based on the evidence of the parties, the Agency finds that vibrations due to passing trains at some residences may at times be distinctly perceptible.

Analysis of the 2014 UBC Report

[121] UBC-EERF conducted two series of tests using five sensors to measure vibration levels. The sensors were placed at five different locations for each test. Out of the ten locations, three were  residences of the applicants.

[122] The parties included the TREV Report in their pleadings. The TREV Report outlines various PPV thresholds for perceptibility. A comparison of the measured levels to the TREV thresholds demonstrates that some of the vibrations were above the TREV perceptible limit of 0.15 mm/s (PPV) and at the Valentine residence, it was above the readily perceptible limit of 2.0 mm/s (PPV).

[123] The FTA Guide outlines various RMS thresholds for perceptibility. A comparison of the measured levels to the TREV thresholds demonstrates that the vibrations were above the FTA perceptibility limit of 65 VdB (RMS) and at the Valentine residence, it was above the FTA distinctly perceptible limit of 75 VdB (RMS).

[124] Based on a comparison of both the TREV thresholds and FTA Guide limits, the Agency finds that the vibration levels exceed the threshold of perceptibility and are distinctly perceptible at the closest residence from the railway line.

Finding on substantial interference

[125] The Agency has reviewed the videos, various documents and photos, and it is apparent that there is structural damage at several residences. However, based on the available information, the Agency is unable to ascertain a direct causality between the structural damage and the vibrations generated from train activities. Therefore, based on the evidence on file, the Agency finds that the applicants' claim that the coal trains are causing structural damage to the applicants’ residences is inconclusive.

[126] Moreover, based on a review of the positions of the parties, UBC Reports, S&W Peer Reviews, and Dr. Ventura’s response to the S&W Peer Reviews, the Agency finds that BNSF railway operations cause perceptible and sometimes distinctly perceptible vibration levels at some of the applicants’ residences. With each train event, interior elements inside some of the applicants’ residences likely shake and rattle for several minutes, resulting in greater annoyance to people. Coal trains operate between midnight and 3:00 a.m., a time when people are more sensitive to the vibrations. The increased sensitivity to vibrations at night is consistent with the ISO-2631-2 standard. The ISO-2631-2 standard states that vibration levels that are only slightly in excess of perception levels are likely to result in complaints. The ground-borne vibrations coupled with the building elements shaking and rattling are likely causing sleep disturbance. In light of the foregoing, and on a balance of probabilities, the Agency finds that some of the applicants have demonstrated that the vibrations from BNSFʼs coal trains, especially at night, are causing them substantial interference.

Reasonableness

[127] Having determined that BNSF’s pass-by vibrations are sufficient to cause substantial interference, the Agency must determine whether these vibrations are reasonable in light of the criteria set out under section 95.1 of the CTA.

[128] Section 95.1 of the CTA imposes an obligation on a railway company to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the operation takes place.

[129] As stated previously, the Guidelines state that “[r]easonableness is determined on a case-by-case basis and relates to an objective sense of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances. The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations. Overall, this balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.”

[130] Although the applicants have lived in their residences for three to 20 years, the Agency notes that since the railway line opened in 1909, the area in proximity to the line has grown with increased residential and commercial developments. The Agency also notes that the railway line has always carried both passenger and freight trains.

[131] The remedies sought by the applicants include: (1) the diversion of American coal to an American port; (2) the rerouting of traffic to another line; and (3) operating with reduced weight, length and speed of coal trains.

[132] In addition, the applicants are suggesting the relocation of the railway line as a potential remedy. BNSF states that it is open to having discussions with local officials about moving the line, and makes reference to the Railway Relocation and Crossing Act, R.S.C., 1985, c. R-4 (RRCA).

[133] The proposed remedies are discussed below with respect to the area where the operations take place, BNSFʼs level of service obligations (as legislated under sections 113 and 114 of the CTA), and BNSFʼs operational requirements.

The area and BNSF’s level of service obligations

[134] The New Westminster Subdivision is located in an area that is mixed with and in proximity to commercial and residential buildings. The Agency recognizes that this railway line is BNSF’s mainline corridor between Vancouver and the United States of America and BNSF has no alternative route for this rail traffic. The railway line serves lower mainland customers with traffic destined to and originating from the United States of America and Mexico. The Agency therefore accepts that this railway line is an important and integral part of BNSF’s network and it is vital to Canada’s trade and the economy of the lower mainland of British Columbia.

[135] Sections 113 and 114 of the CTA set out the railway company’s level of service obligations, or what is generally referred to as “common carrier obligations”. Under these sections, a railway company must furnish, according to its powers, adequate and suitable accommodation for the receiving, loading, carrying, unloading and delivering of all traffic offered for carriage on its railway. More specifically, paragraph 113(1)(c) of the CTA provides that a railway company shall, without delay, and with due care and diligence, receive, carry and deliver the traffic.

[136] The Agency recognizes that beginning in 2010 and stabilizing at current levels in 2011, BNSF has carried increased amounts of coal and related products on the New Westminster Subdivision for its customers. The Agency accepts that the increase in the number of trains is a result of growing demands from coal shippers in the Pacific Rim leading to the demand for service from all railway companies serving Roberts Bank, including BNSF. Therefore, the Agency finds that the increase in coal train activities is a prerequisite for BNSF to meet its level of service obligations.

BNSF’s operational requirements

[137] The applicants did not dispute BNSFʼs submission that the railway track is constructed with CWR, without turnouts, switches or joint bars which are factors that reduce vibrations. The track is also inspected in accordance with regulatory standards. Under the RSA, it is TC’s mandate to oversee the operation and maintenance of railway equipment and the maintenance of the railway infrastructure. The Agency also notes BNSF’s statement that its locomotives and cars are maintained consistent with regulatory and industry standards. In addition, the Agency notes that TC indicated that the operating speeds of the coal trains are within the limits prescribed in the operating manual for that particular subdivision. BNSF’s trains do not normally stop and currently operate through the White Rock beach at a reduced speed as a result of an order issued by TC, thereby minimizing vibration impacts.

[138] With respect to reducing weight and length, there is no supporting evidence in the pleadings to suggest that reducing the weight and length of trains would result in a noticeable reduction in vibration levels. For example, splitting a given number of rail cars into shorter consists necessarily involves increasing the number of train pass-bys in total to move the same volume of coal. Therefore, this solution would likely add to the compounding problem that already exists with the growing coal train traffic. The Agency also notes that according to TC, the weight of BNSFʼs coal trains are within the limits prescribed in the operating manual for that particular subdivision.

[139] In light of the above, the Agency finds that the weight, length and speed of coal trains are part of normal railway operations at this location and there is no sufficient evidence to conclude that BNSF could change or vary its current operations in this area. The Agency is also of the opinion that reducing the weight and length of the coal trains may compound the problem that already exists.

[140] With respect to the rerouting of traffic to another line, BNSF has no alternative route for this traffic. Therefore, the Agency accepts that rerouting is not an option.

[141] With respect to the submissions concerning relocation of the railway corridor, there is no application under the RRCA before the Agency.

[142] As noted above, based on a review of the positions of the parties, UBC Reports, S&W Peer Reviews, and Dr. Ventura’s response to the S&W Peer Reviews, the Agency finds that the existing vibration levels cause substantial interference. However, the Agency, in balancing the vibration concern in the context of section 95.1 of the CTA, must give considerable weight to BNSF’s level of service obligations and operational requirements. In this regard, the Agency is of the opinion that BNSF is conducting railway operations necessary to meet those requirements. Therefore, the Agency finds that the vibrations at this location are reasonable and the Agency will not consider any of the remedies proposed by the applicants.

CONCLUSION

[143] Taking all the above factors into consideration and in the context of section 95.1 of the CTA and the Agencyʼs Guidelines, the Agency finds that the current vibrations from BNSFʼs coal train pass-bys on the New Westminster Subdivision are reasonable.

[144] Accordingly, the Agency dismisses the application.