Decision No. 363-R-2004

July 2, 2004

File No. R 8045/D1-3

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BACKGROUND

On April 15, 2004, the Ville de Drummondville (hereinafter the City) filed with the Canadian Transportation Agency (hereinafter the Agency) a complaint in which it objects to the extension of a siding of the Canadian National Railway Company (hereinafter CN), in the city of Drummondville, in the province of Quebec.

On April 20, 2004, the Member of Parliament for Drummond, Pauline Picard, also advised the Agency of her concerns regarding CN's project.

According to the City, CN's project, which was to begin on or about April 24, 2004, involves the construction of a 12,000-foot siding, mostly in an urban area, namely between Notre-Dame Street and the 5^e Rang (i.e., between mileage 98.66 and 101.11 of the Drummondville Subdivision). The City also submits that the project poses risks of derailments or railway accidents and would be a source of constant visual pollution resulting from long trains remaining stationary. The City adds that residents are already complaining about train speeds, noise and the griminess resulting from the railway facilities. The City also maintains that the project will have a direct impact on a waterway, namely Kelly Creek, which is located along the proposed layout of the siding. The City adds that to its knowledge no application for approval has been filed with the appropriate authorities respecting the project.

The City and the Member of Parliament ask the Agency to stay any granted authorities and require that CN review its project.

On April 20, 2004, CN responded to the City's complaint and confirms that it did not request or obtain any authority from the Agency with respect to the construction project. However, as the project could fall under the Railway Safety Act, R.S.C., 1985, c. 32 (hereinafter the RSA), CN states that it has provided the required sixty (60)-day notice of the construction work to be carried out at a culvert (at mileage 100.90 of the Drummondville Subdivision) that will be affected by the project.

By Decision No. LET-R-114-2004 dated April 23, 2004, the Agency directed CN to provide its comments on the City's complaint in light of section 98 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA). CN filed its answer on May 3, 2004 and the City filed a reply on May 10, 2004.

POSITIONS OF THE PARTIES

With respect to the scope of section 98 of the CTA, CN argues that its project falls within the exemption provisions set out in this section, as the proposed work is to be carried out entirely within CN's existing right of way. In this respect, CN filed a plan showing the extent of the work. Further, it argues that the railway grade separations on Route 55 and Lemire Boulevard were initially constructed in such a way as to allow for the future installation of a secondary track.

CN adds that it has met the regulatory requirements of the RSA in that it has given notice of the proposed construction work. Additionally, it has taken the necessary steps with Oceans and Fisheries Canada, Environment Canada and Quebec Region for Oceans and Fisheries, in order to obtain the required approvals with respect to the proposed work affecting waterways. However, according to CN, it did not begin construction as it had not received the required authority; the required 60-day notice period had not expired; and the City, unlike the affected landowners, had not confirmed to CN that it was not opposed to the replacement of the culvert in respect of which the 60-day notice had been given.

According to CN, the case is being handled normally in all respects and the regulatory and legal requirements have been met.

Further, as this is a project that CN considers essential to the operation of its network, CN will examine all available options with respect to this project, as provided for in cases where a project is opposed and, if warranted, will apply to the appropriate authorities, namely Transport Canada, if security concerns remain following the 60-day time period, in accordance with the existing provisions pertaining to railway construction work.

In its reply to CN's answer, the City states that it met with CN representatives who proposed an alternative which consists of laying down parallel tracks between the entrance to the Drummondville Regional Industrial Park and the municipality of Saint-Germain-de-Grantham (from mileage 100 of the Drummondville Subdivision in the direction of the 7^e Rang).

According to the City, this option also raises concerns. Indeed, it does not solve the problem of visual pollution as the railway access is in proximity to a residential area. Residents will endure noise and visual pollution resulting from the operation of trains. Further, this alternate solution suggests that the crossing at the 5^e Rang would be obstructed during railway manoeuvres, thereby causing motorists to make an important detour through other intersections. Given the time required to respond adequately in case of an emergency, the City expresses its opinion that this solution appears to be unacceptable. If the waiting time is also considered, school buses, motorists and road maintenance crews will also be seriously affected.

Pursuant to the Civil Protection Act (hereinafter the Protection Act), the City must consider the risk that is posed by the presence of a railway track within its boundaries. According to the City, a double track in a considerably urbanized area doubles the risk. It adds that the intention of the Protection Act is to minimize vulnerability and that the City must ensure that road traffic can circulate freely and that downtimes are minimized.

Finally, the City reiterates its position stated in the complaint and, in particular, upholds its safety concerns. It again requests that CN review its project consisting of laying down double tracks and that it take all possible measures to preserve the present environment and ensure that traffic can circulate freely along the 5^e Rang.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

Section 98 of the CTA pertaining to the construction of railway lines provides that:

(1) A railway company shall not construct a railway line without the approval of the Agency.

(2) The Agency may, on application by the railway company, grant the approval if it considers that the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line.

(3) No approval is needed for the construction of a railway line (a) within the right of way of an existing railway line; or (b) within 100 m of the centre line of an existing railway line for a distance of no more than 3 km.

Consequently, while the construction of a railway line is subject to the Agency's approval pursuant to subsection 98(1) of the CTA, subsection 98(3) of the CTA specifically provides that such an approval is not required for the construction of a railway line within the right of way of an existing railway line.

In the present case, the plans filed by CN in response to Agency Decision No. LET-R-114-2004 dated April 23, 2004 clearly show that the proposed construction work to be carried out is entirely within CN's existing right of way.

In light of the above and the exemption provided for in subsection 98(3) of the CTA, the Agency finds that CN's proposed construction does not require Agency approval. Consequently, the complaints are hereby dismissed.

Notwithstanding the above, the Agency notes that the construction project could impact on the Notre-Dame and 5^e Rang crossings.

The Agency reminds all parties that pursuant to section 101 of the CTA, the Agency may approve the reconstruction of crossings and related works and apportion construction and maintenance costs if parties cannot reach an agreement in this regard.

Further, the RSA empowers the Agency to apportion costs associated with the construction, modification, maintenance or operation of railway facilities, for example for railway crossing warning devices, if parties cannot reach an agreement in this regard.

With respect to the environmental issues raised by the complainants, the Agency's jurisdiction to conduct an environmental assessment is only triggered when the Agency is required to approve a construction or reconstruction of a railway line.

With respect to the safety concerns that were raised, the Agency notes that these fall under the purview of Transport Canada pursuant to the RSA. Consequently, copies of the complaints and this Decision will be forwarded to Transport Canada.

CONCLUSION

As the complaints relate to a construction project for which the approval of the Agency is not needed, the Agency hereby dismisses the complaints.