Decision No. 448-R-2002

August 9, 2002

August 9, 2002

APPLICATION by TransÉnergie, a division of Hydro-Québec, pursuant to subsection 101(3) of the Canada Transportation Act, S.C., 1996, c. 10, for authority to reconstruct the two utility crossings located at mileages 155.23 and 155.39 of the Trois-Rivières Subdivision of the Canadian Pacific Railway Company by replacing them with one utility crossing to be constructed at mileage 155.40 of the same Subdivision, in the city of Ste-Foy, in the province of Quebec, as shown on Plan No. 6473-60105-001-010HQ1, Sheet 1 of 1, dated April 19, 2001, on file with the Canadian Transportation Agency.

File No. R 8050/252-155.40


APPLICATION

On May 14, 2002, TransÉnergie, a division of Hydro-Québec, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On July 3, 2002, the Canadian Pacific Railway Company (hereinafter CP) filed with the Agency its answer to the application. On July 15, 2002, TransÉnergie filed its reply to the answer.

ENVIRONMENTAL ISSUES

Pursuant to subsection 18(1) of the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (hereinafter the CEAA), the project has been screened and a screening report has been prepared.

The Agency is of the opinion that public participation in the screening of the project under subsection 18(3) of the CEAA is not required in the circumstances.

After taking into consideration the screening report, the Agency determines that the project is not likely to cause significant adverse environmental effects.

FACTS

The purpose of this reconstruction proposal is to replace two utility crossings with one and to replace the two single-circuit 220 kV and 230 kV transmission lines crossing the railway at the existing utility crossings with one double-circuit 230 kV transmission line installed on more resistant tubular pylons crossing the railway at the proposed location. The existing utility crossings are covered by agreements between the Shawinigan Water & Power (Hydro-Québec) and CP dated April 9, 1954 (at mileage 155.23) and December 22, 1959 (at mileage 115.39).

POSITIONS OF THE PARTIES

In its application, TransÉnergie states that it objects to the payment of crossing fees to CP with respect to the new utility crossing, to the payment of fees for any future alterations to the facilities and to the period of notice requirement for the termination of the agreement with CP.

In its answer to the application, CP submits that it has no objections to TransÉnergie's application provided that all costs of construction and future maintenance of the new utility crossing be borne by TransÉnergie.

In its reply to CP's answer, TransÉnergie indicates that it accepts to pay all costs of construction and future maintenance of the new utility crossing at mileage 155.40.

ANALYSIS AND FINDINGS

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

The Agency notes that TransÉnergie and CP were unable to agree on some terms and conditions of the proposed utility crossing agreement. The parties were however able to agree on the costs of construction and maintenance of the said crossing. Additionally, CP indicated that it had no objection to the application for the construction of the proposed utility crossing.

In light of the foregoing, the Agency finds that TransÉnergie should be granted authority to construct the utility crossing as shown on Plan No. 6473-60105-001-010HQ1, Sheet 1 of 1, dated April 19, 2001.

CONCLUSION

Based on the above findings, the Agency, pursuant to subsection 101(3) of the Canada Transportation Act, hereby authorizes TransÉnergie to construct and maintain, at its own expense, the utility crossing as shown on Plan No. 6473-60105-001-010HQ1, Sheet 1 of 1, dated April 19, 2001.

In addition, with respect to liability, the Agency has determined that the following shall apply in this case:

TransÉnergie shall at all times indemnify CP, the owner of the railway across or along which the transmission line will be constructed, from and against all loss, cost, damage, injury and expense to which it may be put by reason of any damage or injury to persons or property caused by the construction, maintenance or operation of the transmission line, as well as against any damage or injury resulting from the imprudence, neglect or want of skill of the employees or agents of TransÉnergie in connection with the construction, maintenance or operation of the transmission line, unless the cause of such loss, cost, damage, injury or expense can be traced elsewhere.

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