Decision No. 591-R-2006

October 26, 2006

File No. R8045/M2

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APPLICATION

[1] On June 28, 2006, the Canadian Pacific Railway Company (hereinafter CP) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. The application included a draft environmental assessment of the project prepared in accordance with the requirements of the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (hereinafter the CEAA).

[2] Pursuant to subsection 11(2) of the CEAA, an environmental assessment of a construction project is required before the Agency can exercise its discretion under section 98 of the Canada Transportation Act (hereinafter the CTA). As part of its responsibility under the CEAA, the Agency, along with any other responsible authorities, must ensure that an environmental screening is conducted prior to making any irrevocable decision on the project.

[3] Notice of the proposed project was published by CP in the Prairie Post on July 7, 2006 and in the Lethbridge Herald on June 30, 2006; interveners had 30 days to file their submissions before the Agency. Four interventions were filed with the Agency. CP provided its responses to the interventions to the Agency and served a copy on the interveners. No replies to CP's responses were received.

[4] In Decision No. LET-R-278-2006 dated October 17, 2006, the Agency determined, pursuant to paragraph 20(1)(a) of the CEAA, that the proposal to realign 3.4 kilometres of the Montana Subdivision near Milk River, Alberta is not likely to cause significant adverse environmental effects taking into account the implementation of the proposed mitigation measures.

[5] The Agency, in Decision No. LET-R-278-2006, also advised CP that should it approve the construction project under section 98 of the CTA, a number of conditions pertaining to the environmental assessment approval and listed in Decision No. LET-R-278-2006 would be included in the Agency's approval.

BACKGROUND

[6] CP's Montana Subdivision passes by the western edge of the town of Milk River and lies to the west of the existing Highway No. 4 at a distance of approximately 30 metres. CP also owns two siding tracks within the town which serve the local grain elevators operated by Parrish & Heimbecker and WH Farms, as well as a producer car loading site.

[7] Highway No. 4 is an important part of the "Canamex North South Trade Corridor" which runs between Canada and Mexico. The only portion of Highway No. 4 in Alberta that has not been upgraded to a four-lane divided highway is a 9.4-kilometre stretch that passes through the town. Alberta Infrastructure and Transportation (hereinafter AIT) plans to twin and upgrade this remaining portion to an expressway standard with a design speed of 130 kilometres per hour.

[8] The existing highway serves as a municipal street (Railway Street) with commercial and residential structures on both sides, along with unrestricted intersections and driveways. The proximity of the railway line and the structures on both sides of the existing highway through the town makes it impractical to reconstruct and widen the existing highway to the proposed expressway standard.

[9] AIT, after consultation with the representatives of the Town of Milk River (hereinafter the Town) and the public over the course of numerous years, has determined that the portion of Highway No. 4 running through the town must be relocated in order to be widened and divided and that it should be relocated west of its current location. Highway No. 4 will remain unchanged as a municipal street and an access road, except for modifications where it will meet the relocated highway.

[10] As a result of the relocated highway project, CP proposes to:

1. relocate approximately 3.5 kilometres of main track between mileages 11.80 and 13.97 of the Montana Subdivision, including a new rail bridge across the Milk River;
2. construct a short spur line (approximately 450 metres) to connect the relocated line with the existing trackage serving customers in the town;
3. remove portions of the existing track, within the limits of the relocation, which will not be required to serve customers in the town; and
4. relocate or eliminate existing level crossings for improved safety.

ISSUE

[11] The issue to be addressed is whether the Agency considers that the location of the railway line diversion is reasonable taking into consideration the requirements for railway operations and services and the interests of the localities affected by the line.

POSITIONS OF THE PARTIES

[12] CP states that the location of the railway line is reasonable and is in accordance with the needs of AIT to upgrade and twin Highway No. 4. CP submits that the relocated railway line will minimize conflicts between railway and highway traffic, increase public safety, improve crossings, reduce railway activities within the limits of the town and ensure continued rail service.

[13] CP's application included two letters of support: the first from the Alberta Minister of Infrastructure and Transportation (hereinafter the Minister), and a second from the Mayor of the town.

[14] Interventions opposing the proposed project were received from Kathleen Anderson, Betty O'Donnell, Paul Madge, and Wray Swanson.

[15] Mrs. Anderson suggests leaving the tracks as they are and moving the elevators to the west side of the tracks, leaving space for the divided highway to be built on the existing route. Mrs. Anderson also suggests, as an alternative, relocating the highway to the east side of the town.

[16] Mrs. O'Donnell objects to the decision by AIT to route Highway No. 4 to the west of the town rather than to the east, arguing that the eastern alignment would be the safer alternative. The western location for Highway No. 4 would cause congestion and a bottleneck situation resulting in the potential for accidents. With the transportation of dangerous commodities, a collision could result in contamination of the town's water, as well as the release of toxic fumes. Furthermore, she states that the proposed level crossing of Highway No. 4 and the railway spur creates the potential for collisions no matter how many bells and whistles are installed.

[17] Mr. Madge objects to the decision by AIT to route Highway No. 4 to the west of the town rather than to the east. Mr. Madge also expresses concern that a collision at the relocated highway crossing involving dangerous goods would be a catastrophe. Further, Mr. Madge argues that highway traffic will have to stop and wait for trains to move cars in and out of the rail yard resulting in the dangerous stopping of traffic, especially at night.

[18] Mr. Swanson objects to routing Highway No. 4 to the west of the town rather than to the east. Mr. Swanson expresses concerns about train lengths and the possibility of bottlenecks. Mr. Swanson submitted a copy of a document entitled Seeing the Big Picture which indicates that trains travelling through Milk River are usually one kilometre or more in length, which would result in bottlenecks at the railway spur crossing; that there is not enough space for the river, four lanes of highway, the railway and a country road in this area; and that a major fire or disaster would result in the stoppage of all rail and highway traffic.

[19] With respect to the comments objecting to the upgrade of Highway No. 4 and the western alignment route, CP explains that the upgrade and the route alignment of Highway No. 4 were chosen by AIT after an extensive public consultation process. In addition, CP submits that comments regarding the location of Highway No. 4 are not within the scope of section 98 of the CTA.

[20] CP states that its application to relocate a portion of its railway line was made in order to accommodate AIT's decision to relocate Highway No. 4 west of its current location. Refusing to grant CP's application would result in the upgraded highway crossing CP's mainline having unacceptable and unsafe level crossing angles, as well as other unacceptable hazards to safety, interruptions to traffic, and expense to both CP and AIT. It is CP's position that given the chosen western alignment of the highway, relocation of the railway line provides the safest and most environmentally desirable layout.

[21] In response to the concerns expressed regarding spills of dangerous goods, CP states that the relocated line will actually move the majority of CP trains farther away from the town and residential areas, thus increasing safety. CP points out that its customers in the town are primarily grain companies and farmers who load producer cars and, as a result, the trains using the connecting track crossing the highway will be primarily picking up grain cars for export markets and delivering empty grain cars. CP further submits that a number of crossings will be closed and the new crossing location will be equipped with an automated crossing warning system, including bells, flashers and gates, as well as proper turn lanes, acceleration and deceleration lanes, significantly increasing safety for both truck and rail traffic.

[22] CP adds that if the relocation of the railway is not allowed, the upgraded highway alignment will result in two level crossings of CP's mainline, north and south of the town, with unacceptable crossing angles, and a much more dangerous situation. The relocated line will actually eliminate and upgrade crossings, enhancing public safety.

[23] In response to the concerns that trains travelling through Milk River are usually one kilometre or more in length resulting in traffic bottlenecks at the spur crossing and the new divided highway, CP states that relocating its mainline will result in fewer trains travelling into the town, as trains not serving local town businesses will be able to bypass the town and the Highway No. 4 connecting track crossing. CP adds that as only local trains will need to use the proposed connecting track, the number of trains per week crossing the highway will be minimized. The length of the trains serving the town businesses will vary depending upon local demand. The only movements on the connecting track will be to enter and exit the town, CP will not be switching cars in and out of the rail yard on the connecting track.

[24] CP states that crossing safety issues and vehicle/train accidents are matters under the jurisdiction of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (hereinafter the RSA) and Transport Canada.

[25] In response to the position that there is not enough space for the river, the four lanes, the railway and a country road in the subject area, CP states that there is sufficient space for the relocated line, which will have a standard 100-foot width, as evidenced by the Plan, Profile and Book of Reference included with CP's submissions.

ANALYSIS AND FINDINGS

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

[27] Subsection 98(1) of the CTA states that a railway company shall not construct a railway line without the approval of the Agency.

[28] Pursuant to subsection 98(2) of the CTA, the Agency may grant approval if it considers the location of the railway line is reasonable, taking into consideration the requirements for the railway operations and services and the interests of the localities affected by the line.

[29] Pursuant to paragraph 20(1)(a) of the CEAA, the Agency has determined, as outlined in Decision No. LET-R-278-2006, that the proposal to realign 3.4 kilometres of the Montana Subdivision near Milk River is not likely to cause significant adverse environmental effects taking into account the implementation of the proposed mitigation measures.

Requirements for the railway operations and services

[30] The Agency notes CP's submission that the construction of the new railway line is due to the upgrade of Highway No. 4 by AIT and the latter's plan to relocate the highway west of its current location. CP also indicated that the Town was consulted for many years regarding AIT's highway plan.

[31] The Minister, in his letter of support dated March 1, 2006, indicated that the Government of Alberta embarked on a comprehensive program to develop a four-lane divided facility, i.e., the North-South Trade Corridor, from the United States border to Grande Prairie, Alberta. The Minister stated that the Highway No. 4 alignment at Milk River will be rerouted immediately west of the town site, and that to facilitate the construction, it is necessary to relocate CP's track.

[32] The Agency notes that CP indicated that retaining the existing line with at-grade crossings would result in unacceptable crossing angles and would cause unacceptable hazards to safety, interruptions in traffic, and expense to both CP and AIT. CP also indicated that the new rail line relocation will result in fewer trains and will allow for trains that do not serve local town businesses to bypass the town, while local trains will maintain service to customers previously served by CP.

[33] The Agency is of the opinion that given that the realignment of the railway line is a direct result of the construction of the proposed highway by AIT and that it is necessary to maintain the railway operations to service CP customers in Milk River, the requirement for railway operations and services will be met through the proposed rail line construction. Further, for safety and operational efficiency reasons, the continued use of the existing right of way is not a viable option.

Interests of the localities

[34] The Agency notes that the construction of the railway line is a result of AIT highway construction to the west of the town.

[35] The Minister indicated that the completion of the North-South Trade Corridor will strengthen economic trade, provide a safe and efficient highway facility, enhance the tourism industry, and provide spin-off economic benefits to the town and surrounding communities. The Minister also advised that public consultations were carried out on the selection of the proposed highway alignment and rail location, taking into consideration all views while selecting the alignment that best serves the public interest.

[36] The Minister further states that the Highway No. 4 design will provide for safe road and rail crossings for the town and local traffic and that controlled traffic lights will be installed at the rail crossing.

[37] A letter of support dated January 18, 2006 from the Mayor of the town was filed indicating the Town's support for the project. The Mayor stated that the construction project may provide a benefit to the community in the way of public safety through road crossing closures and local traffic diversion to upgraded/improved crossings.

[38] The Agency received four interventions from parties in opposition to the proposed construction. The interventions reflected opposition to the relocation of the existing highway to the west of the town, safety concerns with the movement of dangerous goods, safety and congestion concerns over train lengths, safety concerns of a new rail crossing at a four-lane highway, as well as the land availability for the construction project.

[39] While the realignment of CP's railway line is a direct result of the relocation of the highway to the west of the town, a decision of AIT and not CP, the realignment of the highway by AIT is not within the scope of section 98 of the CTA. Rather, the Agency must consider whether the location of the railway line diversion is reasonable, considering the interests of the localities.

[40] The interveners raised concerns such as traffic congestion, availability of land for construction, and safety concerns. The Agency finds that with respect to congestion, the railway line relocation will result in fewer trains of varying length operating into the town and, therefore, over the crossing. Furthermore, according to the Plan, Profile and Book of Reference, there is sufficient space for the construction of the line at the subject location.

[41] CP has considered the issues of safety at the railway crossing of Highway 4, both in respect of the movement of dangerous goods and crossing safety, which are governed by either the Transportation of Dangerous Goods Act or the RSA. Any such crossing must meet the requirements of the RSA, and CP has stated that the spur crossing will meet or exceed all federal regulations regarding railway construction and installation of public grade crossing warning systems. In addition, CP has indicated that the new railway line construction will move the railway line farther from residential areas, which will increase safety rather than diminish it.

[42] The Agency finds that CP has adequately responded to each of the concerns raised by the opposing interveners and that the proposed highway location and project, as a whole, has had sufficient consultation and support. Accordingly, the interests of the localities affected by the project will be served by the relocation of the railway line.

[43] For the above-noted reasons, the Agency finds that the location of the railway line is reasonable.

CONCLUSION

[44] The Agency, pursuant to subsection 98(2) of the CTA and subject to the following conditions, hereby approves the construction of the line of railway, as well as the construction of the spur line as shown on Plan No. 77557-BOR-001 dated June 8, 2006.

[45] A decision by the Agency pursuant to subsection 98(2) does not relieve CP from its obligations pursuant to the RSA.

CONDITIONS

[46] The approval of the Agency is subject to the following conditions.

[47] The proponents shall:

1. implement the mitigative measures, practices and procedures for the protection of the environment, as set out in the screening report and related filings;
2. cause no variation in those mitigative measures, practices and procedures without the prior approval of the Agency;
3. monitor the effects of the construction and operation of the railway line to:
   • re-evaluate the predictions contained in the screening report and related filings, and
   • evaluate the success of the restoration of the right of way;
4. submit progress reports, to the satisfaction of the Agency, bi-annually;
5. within two months of completing construction of the railway line, file an environmental as-built report, to the satisfaction of the Agency, based on the results of the proponents' monitoring, containing:
   • a detailed re-evaluation of the predicted adverse environmental effects of constructing the railway line (as found in the screening report, related filings and requests for variations),
   • an evaluation of the success of the proponents' mitigative measures, practices and procedures and any approved variations in protecting the environment, and
   • a description of any outstanding effects requiring further mitigation; and
6. on November 1, at the end of the first complete growing season after the proponents complete the restoration of the project site, file a monitoring report, to the satisfaction of the Agency, (including maps and photos) that contains:
   • a full re-evaluation of the predicted effects of the project contained in the screening report and related filings, and
   • a detailed evaluation of the success of the mitigation, any variations and the restoration of the right of way.

Members

• Mary-Jane Bennett
• Guy Delisle