Decision No. 272-R-2000

April 17, 2000

File No. 8030/M3

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COMPLAINT

On August 21, 1998, Pierce Mulhall and Pasquale DeMola filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) concerning the noise and smoke allegedly caused by the shunting activities of the St. Lawrence & Hudson Railway Company Limited (hereinafter SL&H) associated with its Cooksville Transfer Facility (hereinafter the Facility). The complaint included a petition signed by 383 nearby residents in support of abating the noise caused by the SL&H shunting. The complaint focuses on noise, excessive vibrations and pollution occurring between 9 p.m. and 5:30 a.m. which deprive the residents of adequate rest and peace.

On October 5, 1998, SL&H filed its answer to the complaint, and on October 21, 1998, Messrs. Mulhall and DeMola filed their reply.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until April 17, 2000.

FACTS

The houses north of the Galt Subdivision that are directly affected by the railway shunting were built 50 to 60 years ago. The Facility was built in 1974 and was expanded in 1994. It is located in an industrial area to the south of the residential zone and just east of the Dundas Street grade separation. The Facility is used to transfer steel products from railway cars to trucks for delivery to Dofasco and Stelco in Hamilton. Shunting is performed at the west end of the Facility during evening or night-time hours to accommodate the next-morning delivery needs of Dofasco and Stelco.

The Facility handles carloads of steel that originate in Sault Ste. Marie and are initially spotted at SL&H's Lambton Yard in Toronto. The Facility operators make daily car requests based on truckers' schedules for steel that will be transferred during the night. SL&H sorts those cars at Lambton according to requests from the Facility, and the inbound cars are delivered to the Facility after 8 p.m.

To accommodate the next-day delivery requirements of Dofasco and Stelco, SL&H attempts to carry out the necessary shunting between 8 p.m. and 11 p.m. SL&H sorts the incoming cars with the remaining full cars at the Facility. The cars are sorted on tracks opposite the houses in question to the west of the Facility. Car unloading then commences at midnight and placements normally consist of blocks of 4 cars resulting in the movement of cars at the west end of the Facility onto tracks opposite the houses in question. Historically, shunting took place to the east of the Facility. However, this shunting had to be abandoned due to the blockage of Haines Road, a nearby major road artery.

Two site meetings were convened by Agency staff on December 2, 1998 and February 16, 1999 in order to review the complaint, the railway company's position, and to informally explore options for resolving the complainants' concerns. Mr. Frank Dale, Councillor, City of Mississauga, who also attended the February 16, 1999 meeting, indicated that he would approach the appropriate City officials to determine whether an independent sound level survey could be conducted in the area of the complainants' houses. As a result of this undertaking, the parties agreed to await the tabling of the City's survey and to extend the deadline for an Agency decision.

Agency staff understand that Mr. Mulhall moved from his house in the affected residential area in 1999 and there has been no further communication from him. In these circumstances, the Agency is unable to proceed further on Mr. Mulhall's complaint. However, the Agency has continued its investigation with Mr. DeMola, who co-signed the original complaint, as the sole complainant.

On December 15, 1999, City officials advised the Agency that while the City had not undertaken any sound measurements in the immediate vicinity of the houses in question, a company proposing to develop lands located on the south side of the railway had completed a draft Noise Control Feasibility Study for that site. According to the City, this study, which was subsequently filed with the Agency, contained the results of an investigation of sound emanating from the SL&H shunting at the Facility.

A copy of this study was provided to parties to the proceedings on March 31, 2000 who were given the opportunity to comment. SL&H replied indicating that the study is irrelevant and no comments were received from Mr. DeMola.

ISSUE

The issue to be addressed is whether SL&H, in the exercise of its powers, has done as little damage as possible as provided for in subsection 95(2) of the CTA, and if not, what action should be taken by the Agency, if any.

POSITIONS OF THE PARTIES

Mr. DeMola submits that the intensity of the shunting has increased since 1994. Contrary to SL&H's objective of completing shunting activities prior to 11 p.m., Mr. DeMola maintains that they often take place in the early morning hours, occasionally as early as 5:30 a.m. According to Mr. DeMola, this is most unfair, as the resulting vibrations move pictures on wall and shake houses to their foundations. In addition, the ringing of bells and blowing of horns of the parked diesel locomotives create noise. There is also a pall of diesel exhaust fumes which spreads over the area. Mr. DeMola also claims that the noise levels exceed those allowable under the City's noise by-law.

Mr. DeMola states that there is adequate space to easily relocate the shunting activities to an industrial area that is located east of Cawthra Road, away from the affected houses. This could be done without any disruption to local road traffic. He maintains that the only real solution is a return to the 'status quo', that is, the same level of noise from railway operations that existed prior to the construction of the Facility.

While Mr. DeMola agrees that the Facility is located in an industrial area, he asserts that the shunting is actually carried out in a residential area. Mr. DeMola points out that the complaint also extends to the parking of flat cars and tank cars containing volatile or toxic liquids at the rear of houses.

Mr. DeMola submits that the Facility was imposed on the existing residents without the approval of local authorities and without consultation or preparation of an environmental assessment. Mr. DeMola claims that this demonstrates SL&H's disregard for the welfare, comfort and health of its neighbours.

SL&H states that it is often problematic when housing is built near existing railway lines or when industrial land with existing railway traffic is converted to residential use. SL&H claims that local residents in this particular area are having to cope with the choice of living in close proximity to either a very active core rail line or the Facility. SL&H points out that complaints such as the present one are the reason that railway companies formally express concerns to municipalities when property rezoning, particularly to residential status, is proposed for lands located close to an active railway line.

SL&H submits that it operates as a common carrier in a derived demand industry. As a result, it is obligated to carry shipments offered to it in the most direct routing. SL&H states that each train operates over this territory to meet customers' "just-in-time" delivery requirements, however, subsequent to the filing of this complaint, its operating schedule was amended to complete switching, whenever possible, between 8 p.m. and 11 p.m. SL&H advises that it is attempting to improve the completion times for shunting so that it is done by 11 p.m.

With respect to the option of shunting east of the Facility, SL&H indicates that this would necessitate the agreement of the City to close Haines and Stafford Roads, as the shunting would include railway car movements over crossings on those two roads. Without the closure of those crossings, SL&H states that it would be in constant violation of the Canadian Railway Operating Rules which set out a time limit of 5 minutes for blocking a crossing while switching.

SL&H states that it further reviewed its operations in the area to determine whether it would be possible to alter the present switching arrangements, procedures, locations and timing in order to address the residents' concerns. Initially, three options were identified and examined by SL&H:

Completion of switching prior to 11 p.m.

SL&H would alter its start time so that the shunter arrives at the Facility at 7 p.m., just after the GO Transit Train window. There would be constraints on such an earlier start time in that:

• the incoming train from Sault Ste. Marie would need to arrive on time in Toronto; and,
• the timing of arriving cars coming from Lambton would need to coincide with the arrival of the switching trains and out-going requirements of the cars.

This option presents problems in that it requires significant operational monitoring and depends on timely advice to and from all affected persons. SL&H also points out that any shift in shunting times would lead to conflicts with other traffic (e.g. GO Transit trains) on the subdivision.

Perform switching at the east end of the Facility

This option would require the City's approval to close Haines Road and the installation of a crossover between the lead and main tracks and a motion detector crossing gate activator at Stanfield Road. The estimated cost to SL&H of this option would be $100 000.00.

Perform switching at an alternative location

This would involve moving the loaded cars from the Facility to another location where they would be switched in with the incoming cars and returned to Cooksville. SL&H explored four possible locations:

• Lambton (10 miles from Cooksville). SL&H states that this Yard is too congested for the additional shunting.
• Streetsville (6 miles from Cooksville) which, SL&H states, is already full.
• Guelph Junction (24 miles from Cooksville). According to SL&H, this Yard is too distant and is often congested as it is used for the storage of GO Transit train equipment.
• Obico/427 which, SL&H states, is too congested.

During the site meetings, three other options were proposed to SL&H:

• a grade separation could be built to eliminate the blockage of the roads. However, Councillor Dale responds that such an expenditure could not be accommodated within the City's budget.
• the use or purchase of other land by the railway company on which to build a new siding for the shunting. SL&H states that this would be an excessively expensive option;
• daytime delivery of the cars. SL&H indicates that daytime delivery of cars would be impractical as the Facility would have to be shut down while shunting is underway.

SL&H and Transport Canada carried out a test to determine the feasibility of shunting at the eastern end of the Facility. According to results filed with the Agency, the test demonstrated that while it is operationally possible to shunt at the eastern end of the Facility, there would be a negative impact on both rail operations and vehicular traffic on Haines and Sheffield Roads at that end of the Facility.

On January 11, 2000, further to its examination of the various options, SL&H wrote to all parties involved indicating that it is committed to performing the shunting at the Facility as follows:

• switching at the Facility will be performed from the west end as long as it can be completed by no later than 11 p.m.; and,
• if switching at the Facility cannot be completed by 11 p.m., switching will be undertaken from the east end.

On February 7, 2000, Mr. DeMola indicated that he believed the proposal would be effective if SL&H meets the expectations set out in the plan.

Councillor Dale disagrees with SL&H's claim that the responsibility for the current situation rests with the City as the zoning authority. He points out that the subdivision plans for the residential area to the west of the Facility were approved in 1974 prior to the construction of the Facility. Councillor Dale further notes that SL&H did not consult with the City regarding the construction of the Facility.

In response to SL&H's suggestion that Stanfield and Haines Roads be closed to permit shunting at the eastern portion of the Facility, Councillor Dale indicates that these roads are significant industrial collector roadways. He points out that the Fire Chief as well as the Commissioner of Transportation and Works Department have expressed the opinion that such a closure would seriously impact emergency response time.

Councillor Dale considers that the quality of life formerly experienced in the residential neighbourhood should be restored so that the affected residents may once again enjoy the noise-free environment that existed prior to the commencement of the shunting. To achieve this, he strongly suggests the abolition of the shunting activities between midnight and 5 a.m. until a permanent solution can be found.

Albina Guarnieri, M.P. for Mississauga East, submits that residents in the vicinity of the Facility have been voicing concerns over the excessive noise coming from this location. She states that these residents do not want to curtail railway operations; they only request that the shunting activities be transferred to the east side of Cawthra Road. This would reduce the amount of noise emanating from the Facility and would represent a fair and reasonable solution for all parties concerned.

ANALYSIS AND FINDINGS

The Agency has accepted this complaint as one falling within the ambit of section 95 of the CTA.

Subsections 95(1) and (2) of the CTA provide:

(1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

(a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

(b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

(c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

(d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

(e) do anything else necessary for the construction or operation of the railway.

(2) The railway company shall do as little damage as possible in the exercise of the powers.

Section 37 of the CTA states that:

The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

The Agency notes that there are noise and vibrations in the vicinity of Mr. DeMola's house which is caused by SL&H's operations at the Facility. The Agency also notes that the noise and vibrations primarily coincide with the shunting activities which are performed in the evening and, on occasion, into the early morning. The Agency finds that a further impact of the shunting activities is diesel smoke arising from the operating and idling of diesel locomotives near the Facility.

The question for the Agency then becomes whether this noise and smoke arising from the railway operations are causing or have caused damage, and whether the extent of any damage is in fact "as little damage as possible", within the meaning of subsection 95(2) of the CTA. It is this latter issue which requires a consideration of alternatives to the railway operations in question and a critical assessment of whether they are reasonable, in the circumstances, as a means of lessening any resulting damage.

The Agency notes that SL&H has examined many alternatives to operating its railway at the Facility. These alternatives include shunting at totally different locations as well as altering its schedule at the Facility. The Agency also notes that SL&H's assessment of each of these alternatives is satisfactory and that many of them are clearly not reasonable to implement. The Agency also finds that Mr. DeMola's suggestion that the Facility be shut down is not reasonable. Such a total shutdown of a railway operation falls outside of the statutory requirement that the railway company do as little damage as possible in its operation.

Initially, it appeared that any critical consideration of the option of transferring the shunting from the west to the east side of the Facility would have to be abandoned due to the cost of modifying signal controls, the installation of a new crossover track and the possible closure of Stanfield and Haines Roads. However, on September 18, 1998, a Transport Canada official, in conjunction with SL&H, monitored switching at the east end and concluded that such switching at that end created no operational exceptions to the Canadian Rail Operating Rules.

The Agency acknowledges that at the site meeting held on February 16, 1999, Councillor Dale undertook to approach the appropriate City Department to determine whether it could conduct an independent sound level survey of rail noise resulting from the switching at the Facility. The Agency understands that such a study was not undertaken, although a substitute study taken in September 1999 in an area located near the SL&H's railway line was filed with the Agency by the City of Mississauga in December 1999.

The Agency has examined this study and finds that it includes independent sound measurements taken south of Mr. DeMola's house as well as those of many of the persons who signed the "noise abatement" petition. The Agency acknowledges that the sound levels identified in the report are high and that the authors of the report conclude that, "the measured shunting impulsive sounds, without noise attenuation measures, exceed our recommended impulsive sound level criterion by up to 28 dBA.". The report further concludes that, "... [the] shunting activities are only limited to [a] few hours daily, a fact confirmed by the staff of the CPR Cooksville Steel Transfer Facility" and that apart from a "handful" of high impulsive noise events, the majority of such events are, "... at much lower levels and are significantly below the MOE average ...".

The Agency finds that the information is not directly relevant to the noise levels which are specifically the subject of this complaint. Mr. DeMola's house is located at a considerable distance from the area reviewed in the study and is also separated from the Study area by the Galt Subdivision and a berm to the north of that railway line.

The Agency has carefully examined SL&H's proposed solution which has been conditionally accepted by Mr. DeMola.

This proposal calls for:

• switching at the west end of the Facility as long as it can be completed no later than 23:00 hours; and
• switching at the east end when switching cannot be completed by 23:00 hours.

Consistent with standard railway operating practice, once switching is started at the west end, it cannot be completed (that is stopped and restarted) at the east end. Accordingly, SL&H should take this into consideration prior to the commencement of any switching activity from the west end.

CONCLUSION

The Agency finds that SL&H's examination of the many alternatives to its operations and its undertaking to attempt to limit switching from the west end to before 11 p.m. is reasonable. If this proposal is satisfactorily implemented, SL&H will have met its obligations under subsection 95(2) of the CTA by doing as little damage as possible in the exercise of its powers.

The Agency shall monitor SL&H's compliance with this undertaking as well as its performance once it is implemented and reserves the right to make any further findings or orders as may be necessary in the circumstances. Accordingly, the Agency hereby directs SL&H to provide assessments satisfactory to the Agency of the implementation of the proposal and its impact on noise reduction after 11 p.m. These reports shall be filed with the Agency on a quarterly basis until otherwise directed by the Agency.