Decision No. 594-R-2008

November 27, 2008

APPLICATION by Alberta Infrastructure and Transportation, pursuant to section 101 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No. R8050/421-013.84

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Application

[1] On January 28, 2008, Alberta Infrastructure and Transportation, now known as Alberta Transportation (AT), applied to the Canadian Transportation Agency (the Agency) for authority to construct a road crossing (grade separation). The road crossing consists of a grade separation to carry Highway 60 over the tracks of the Canadian National Railway Company (CN) at mileage 13.84 of the Edson Subdivision, in the province of Alberta.

Background

[2] On April 7, 1914, the Board of Railway Commissioners for Canada, in its Order No. 21614, authorized the Grand Trunk Pacific Railway Company to construct its railway across certain highways in the District of North Alberta, including at the location of the above-mentioned crossing.

[3] On August 1, 1974, the Railway Transport Committee of the Canadian Transport Commission (RTC), in its Order No. R-19096, authorized AT to widen and improve the crossing, at its own expense.

[4] On October 5, 1977, the RTC, in its Order No. R-25603, authorized CN to construct an additional track at the crossing and to install automatic protection at its own expense.

[5] Currently, the level crossing consists of a two-lane highway with paved shoulders (Highway 60), two CN railway tracks and a road crossing warning system consisting of flashing lights, bells and gates.

[6] Highway 60, located three kilometres west of Edmonton, is a major north-south route which connects Highways 39 and 19 to Highway 16 (the Yellowhead Highway) and provides access to bordering industrial and commercial developments. According to AT, the annual average daily traffic (AADT) on Highway 60 has increased from approximately 6,000 to 11,410 vehicles per day between 1998 and 2006, with a projected 4.7 percent increase each year from 2006 to 2017.

[7] At the location of the crossing, CN's railway line is double-tracked and forms part of the main line from Edmonton to Vancouver. The current speeds are 70 mph for passenger trains and 60 mph for freight trains with the maximum length of trains at 12,000 feet. AT had previously requested rail traffic information for a planning study of the crossing, and was advised in December 2000 that CN had an average of 29 train movements per day at the crossing, did not expect traffic to decline in the future, supported an overhead grade separation and planned to add a third track in the near future. In its recent submission, CN clarified that between 1997 and 2007 the average number of trains had decreased from 34.7 to 29.8, that it expected an increase of only two trains per day due to the expansion of the Port of Prince Rupert in 2010 and that it no longer requires a third track.

[8] AT is planning to improve Highway 60 between Highway 16 and Highway 16A by increasing its capacity to four lanes, reconstructing the existing Highway 16A/60 interchange and constructing a grade separated crossing over the tracks of CN, as the initial stage of an ultimate six-lane facility estimated for 2040. AT originally estimated the cost of the basic grade separation to be $54.7 M or $57.2 M with the inclusion of additional facilities requested by both parties, but noted that these costs were preliminary and may vary when the project is tendered.

[9] On May 12, 2008, following the filing of pleadings from both parties, a site meeting was held between staff of AT, CN, the Agency and Transport Canada to discuss the basic grade separation. Although AT's original application included horizontal clearances to accommodate a third track beneath the structure, CN has indicated that it requires a private access road beneath the structure, instead, to allow direct access to either side of Highway 60. CN currently uses a private entrance west of Highway 60 to access its right of way and a switch and uses a gated access road east of Highway 60 for maintenance and access to a hotbox detector. It was agreed at the meeting that the plan should be modified to include clearances for a private access road in addition to the two existing tracks. CN agreed to pay the costs to redesign the overhead bridge (up to $80,000) and AT submitted a revised general arrangement plan.

[10] Both parties previously concurred that the maintenance costs should be apportioned in accordance with paragraph 3b) of the Agency's Guidelines on Apportionment of Costs of Grade Separations (the Guidelines).

[11] Paragraph 3a) of the Guidelines states that if a grade separation is to be constructed or an existing grade separation is to be reconstructed, the construction costs are normally apportioned as follows:

1. On projects due primarily to road development:
   • 85% road authority
   • 15% railway company
2. On projects where both road and railway development have contributed largely to the need for the project:
   • 50% road authority
   • 50% railway company

Preliminary matter

[12] Pursuant to subsection 101(3) of the Canada Transportation Act (the CTA), the Agency may authorize the construction of a crossing when the parties are unsuccessful in negotiating an agreement. Subsection 101(4) of the CTA provides that when parties are unsuccessful in negotiating an agreement relating to cost apportionment for construction or maintenance of a crossing, section 16 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (RSA) applies.

[13] At the site meeting, the parties indicated that they are in agreement on the scope of the project and that the only outstanding issue is the apportionment of the construction costs for the proposed grade separation. Therefore, the Agency has determined that the application will be dealt with pursuant to section 16 of the RSA.

[14] As section 16 of the RSA does not trigger the requirement for an environmental assessment under the Canadian Environmental Assessment Act, S.C.,1992, c. 37, a federal environmental assessment is not required for this project.

Issue

[15] How should the costs of the construction of the grade separation be apportioned?

Positions of the parties

[16] AT submits that as both road and railway developments have contributed to the need for the project, the costs for construction and maintenance of the overhead bridge should be allocated 50 percent to the road authority and 50 percent to the railway company in accordance with subparagraph 3a)(ii) of the Guidelines.

[17] AT maintains that both parties have experienced growth in traffic at the crossing and therefore the cost of construction should be apportioned according to the growth. AT submits that the addition of a second track, the increased number of trains to 30 per day, and the increased average train lengths of 6,000 to 12,000 feet all constitute railway development. AT further submits that CN's average train numbers per day do not accurately reflect rail traffic, as it is the length of trains and tonnage hauled on the line that have increased, which adds to the delay for vehicles at the crossing and inconveniences the travelling public. AT adds that there are discrepancies between CN's submitted future traffic figures of an additional two trains per day due to the future expansion of the Port of Prince Rupert and those CN provided for AT's "Capital Region Integrated Management Plan"— in which CN had forecasted increases of eight trains per day and increases to train lengths of 1,500 feet (to 8,000 feet).

[18] AT also maintains that CN initially created the problem at this crossing in 1914 when it first crossed the roadway right of way, and has restricted AT from expanding its facilities without occurring major costs.

[19] AT adds that the Guidelines state that the benefits accruing to each party have already been taken into account, making a detailed discussion of the benefits of this project unnecessary. However, AT notes that as the overhead bridge will eliminate a crossing at-grade, both parties benefit equally. A grade separation provides freedom of operation for roadway and railway traffic, provides CN an opportunity to construct a third track, eliminates CN's maintenance costs at the existing grade crossing, improves safety, and improves CN's public image. AT submits that both parties must coexist at this crossing and share the responsibilities of providing a safe and efficient facility for the travelling public. AT argues that a 50/50 cost-sharing arrangement, with each party paying for its own additional facilities, is fair, equitable and reasonable to both parties.

[20] CN claims that as the project is due primarily to road development, the road authority should be primarily responsible for the costs of the proposed work. Therefore, in accordance with subparagraph 3a)(i) of the Guidelines, the construction costs should be apportioned 85 percent to AT and 15 percent to the railway company.

[21] CN submits that the need for the proposed grade separation arises exclusively for the purpose of accommodating the increase in vehicular traffic caused largely by the rapid growth of bordering industrial and commercial developments. CN notes that it has reduced its train volumes over the past 10 years, while vehicular traffic has doubled. CN maintains that parties other than itself have created the need for the work and the primary beneficiaries of the proposed work are the Province and the travelling public. AT will benefit from the elimination of the grade crossing as road capacity will increase significantly and traffic flow problems will be eliminated, whereas CN will acquire no additional facilities and its operations will not be enhanced.

[22] CN maintains that its current needs at this crossing are two tracks and a south access road for switch maintenance. CN states that it does not oppose the construction of an overhead bridge separation at this location, but has no operational requirement for it.

[23] AT replies that railway companies have no incentive to install grade separations, as they have freedom to operate regardless of the vehicular traffic. It is the travelling public that must stop to accommodate trains.

Analysis and findings

[24] Subsection 16(1) of the RSA allows a proponent of a railway work or any person who stands to benefit from the completion of that work to refer the matter to the Agency for a determination if they cannot agree on the apportionment of the costs. Subsection 16(4) of the RSA authorizes the Agency to apportion the costs in these situations. Each case is assessed on its own merits.

[25] In its deliberations, the Agency may use the Guidelines for decisions concerning the cost apportionment for construction or reconstruction of grade separations. The Guidelines were published to assist parties in their negotiations and/or in the preparation of their submissions for any application to the Agency for a decision on the apportionment of costs. Although the Agency is not bound by these Guidelines, they provide an appropriate starting point for the Agency's cost apportionment decisions concerning grade separations. The Guidelines consider, among other things, the benefits accruing to each party as well as the responsibility each party has to coexist at crossings.

[26] Both parties agree that the Guidelines apply to this application. The Agency finds that this case fits the criteria of section 3 of the Guidelines, that is "to eliminate an established road crossing at grade", and therefore concludes that the Guidelines apply in this case.

[27] Section 3 of the Guidelines states that where a grade separation is required, the Agency will apportion costs on a 50/50 basis where both the road and railway development have contributed largely to the need for the project. Where this need arises primarily due to road development, 85 percent of the costs will be borne by the road authority.

[28] The Agency notes that one of the generally accepted "exposure factors" used to determine whether a grade separation is warranted is the highway-railway traffic cross product. If the resulting product (the average daily vehicular traffic multiplied by the daily number of trains) is less than 200,000, a level crossing with proper protection is considered to be sufficient. At this level crossing, the daily vehicular traffic in 2007 was 12,000 and the train count approximately 30 trains per day, giving a cross-product of 360,000, which would warrant a grade separation at this location.

[29] With respect to AT's comment that railway companies have no incentive to grade separate crossings as they have the freedom to operate regardless of traffic, the Agency notes that the Guidelines have taken into consideration the responsibility that each party has as an essential part of Canada's transportation system to coexist at crossings.

[30] The Agency is of the opinion that both parties have contributed to the need for the grade separation.

[31] CN tracks are both main line tracks on the route from Edmonton to Vancouver, and the crossing is close to private sidings, which creates a need for switching moves. Although there are discrepancies in CN's forecasted train counts, all sources indicate that railway traffic is expected to increase by somewhere between two and eight trains by 2010. The Agency notes that between the years 2000 and 2007 the actual rail traffic increased from 29 to 29.8 trains per day, a 2.75-percent increase.

[32] The project was initiated by AT to accommodate vehicular traffic, which has increased on average by nine percent each year from 1998 to 2006. AT has predicted that traffic will increase by 4.7 percent annually from 2006 to 2017 to 18,000 vehicles per day. AT also indicates that Highway 60 is a major north-south route, and the bordering industrial and highway commercial development is infilling rapidly. Highway 60 is a four-way highway south of this location and the proposed work will bring this portion up to the same standard and capacity as the rest of the highway.

[33] The Agency finds that both parties benefit from the construction of the project as the railway company will benefit from increased safety, reduction of the potential for accidents, and increased operational efficiency through the elimination of a level crossing and maintenance of signals. On the other hand, vehicular traffic stands to benefit as the grade separation will eliminate an established road crossing at grade — allowing vehicles to continue unimpeded, at a greater speed, which is more convenient and safer for the travelling public. The Agency is of the opinion that, with the elimination of the vehicle/train conflicts and delays that occur at the existing grade crossing, AT stands to benefits the most.

[34] With respect to AT's argument that it is senior at the crossing, the Agency has determined that the Guidelines apply in this case. Therefore, the issue to be determined is whether the construction of the overhead bridge is due primarily to road development or whether both road and railway development have contributed largely to the need for the project, and it sees no need to consider seniority as a separate factor in this case.

[35] The Agency is of the opinion that it is the current and proposed future vehicular traffic that has created the greatest need for the project and it is the vehicular traffic that will benefit the most from the construction of the grade separation. Consequently, the Agency finds that the project is primarily required to meet the needs of the roadway traffic, and construction costs for the basic grade separation should be apportioned 85 percent to AT and 15 percent to CN, in accordance with subparagraph 3a)(i) of the Guidelines.

Basic grade separation

[36] In the Guidelines, a basic grade separation is defined, for cost apportionment purposes, as "that portion of the work which is required to provide adequate facilities for present day needs at the time of construction and reconstruction of the grade separation."

[37] The Guidelines consider any clearance requirements in excess of the basic grade separation as additional facilities which should be paid by the party requesting such facilities.

[38] In its initial application, AT provided two cost estimates for the overhead bridge project - one for the basic grade separation and one to include the additional facilities to accommodate six lanes of traffic and CN's third track. CN's request to include provision for a private access road, rather than a third track, would require a total horizontal clearance under the bridge of 17.997 m, which includes the additional clearance of 2.425 m to accommodate CN's access road.

[39] Although CN maintains that its current need at the existing crossing is two tracks and a south access road, the Agency notes that the existing access road is on the east side of the crossing only, and does not extend on the west side of Highway 60. Therefore, the Agency finds that the basic grade separation at this location is a structure which provides for the crossing of four lanes of traffic over two railway tracks, as this would provide for present day needs.

[40] The Agency finds that the extra width to allow for CN's access road and also any work to allow for AT's request for grading to accommodate the future six-lane roadway to be additional facilities outside of the basic grade separation and therefore the costs associated with these additional facilities shall be paid by the party requesting them.

[41] The Agency notes that the parties agreed at the site meeting that the project limits remain as submitted in the application and include the nearby Acheson intersection.

[42] CN's request to have the structure modified to include provision for the private access road due to a change in its operational needs will require a revision of the plans for the structure. CN agreed to contribute up to $80,000 to revise the plans.

[43] The Agency notes that the parties are also in agreement on the apportionment of the maintenance costs of the basic overhead bridge.

Conclusion

[44] CN will pay 15 percent of the construction costs of the basic grade separation (road crossing) and 100 percent of the additional costs associated with the increase in the horizontal clearances required to accommodate CN's private access road. AT will be responsible for 85 percent of the construction costs of the basic grade separation and 100 percent of the costs related to the grading to accommodate the future six-lane roadway.

[45] With respect to maintenance, AT will be responsible for the costs of maintaining the substructure and superstructure of the basic overhead bridge, including the highway approaches, the highway surface and the drainage and lighting facilities, and CN will be responsible for all other costs of maintenance including the additional cost of maintaining the overhead bridge superstructure associated with the increased horizontal clearance to accommodate CN's private access road, the railway approaches, track structure, railway drainage and communication facilities.

Members

• Raymon J. Kaduck
• J. Mark MacKeigan