Decision No. 797-R-1994

December 5, 1994

File No. R 8050/411-011.33

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BACKGROUND

Highways 7, 17 and 417 are the major long-distance routes which connect the Ottawa region with Central Ontario, Northern Ontario, Southwestern Ontario, Toronto, Montréal and the East. Highways 15, 16 and 31 are important links which join the National Capital Region with Ontario's major east-west artery, namely Highway 401. Highway 417 (known locally as the Queensway) is the only urban freeway of the National Capital Region, and is the major road transportation artery running east-west.

By the fall of 1996, the first leg of Highway 416 will be completed and will link Highway 417 with Highway 16 near Century Road. From that point, Highway 16 will be widened to four lanes and, when completed, Highway 416 will then connect Highway 401, near Prescott, with Highway 417 in Bells Corners. Highway 416 will provide a major artery between the Ottawa-Hull area and Southern Ontario.

Cedarview Road is a two-lane paved roadway which crosses the Canadian National Railway Company (hereinafter CN) Beachburg Subdivision. This signalized at-grade crossing allows access to the community of Lynwood Village within the City of Nepean. Cedarview Road is also an important link between the central business district to the north and the communities such as Barrhaven and Richmond to the south.

DESCRIPTION OF THE PROJECT

This application covers the second stage of the project which consists of the construction of a subway to carry the proposed Highway 416 and Cedarview Road across and under the tracks of CN, at mileage 11.33 Beachburg Subdivision.

The first stage of the project consisted of temporarily relocating the Cedarview Road level crossing from mileage 11.33 Beachburg Subdivision to mileage 11.21 Beachburg Subdivision. This work was approved by the National Transportation Agency (hereinafter the Agency) on March 1, 1994 by Order No. 1994-R-60.

The applicant proposes to construct a subway to allow the proposed new Highway 416 and existing Cedarview Road to cross under the CN Beachburg Subdivision. The complete subway will carry a single main track and a siding track. Highway 416 will be constructed to four lanes with a provision to allow for a six-lane configuration in the future. Cedarview Road will be relocated under the CN subway in its present two-lane configuration.

The work entails the construction of two diaphragm walls including dewatering facilities, drainage structures, slope stabilization and installation of a ground water recharge system. The diaphragm walls, which are a significant component of this project, will be constructed using a bentonite displacement technique. The design chosen is a result of the underlying soil conditions which consist of one to three meters of a thick crust on top of sensitive marine clay (Leda Clay).

POSITION OF THE APPLICANT

The applicant has divided the financial plan for the construction of this subway into two components. The first component deals with the costs associated with the construction of Highway 416, which the applicant has agreed to pay in its entirety. The second component deals with the costs associated with the relocation of the Cedarview Road at-grade crossing under the proposed subway. The applicant has proposed to pay 85 percent of the cost of this work with the remaining 15 percent to be paid by CN, in accordance with the Agency Guidelines on Apportionment of Costs of Grade Separations (hereinafter the Agency Guidelines).

The applicant considers that the Cedarview Road component represents 25 percent of the total construction based on the following:

• the entire subway structure is 100.5 metres in length;
• the length required for Cedarview Road is 27.5 metres;
• Highway 416 is designed for six lanes; and
• Cedarview Road is designed for two lanes.

Therefore, the applicant considers that 25 percent of the total construction costs should be allocated for this component and that CN should contribute 15 percent towards this cost, that is $1,151,834.

With respect to the cost of maintaining the subway, the applicant is prepared to assume the cost of maintaining the highway approaches to the subway, the diaphragm walls, the drainage and the lighting facilities. The Regional Municipality of Ottawa-Carleton will be responsible for the maintenance of the Cedarview Road surface. The maintenance and ownership of the subway superstructure and substructure would be assumed by CN.

The applicant submits that the proposed grade separation of Cedarview Road would provide increased safety and convenience to the public by eliminating all vehicle-train conflicts and delays at the existing crossing. Emergency vehicle access would also be significantly improved while the potential for accidents would be greatly reduced. The depressed highway right-of-way and the relocation of Cedarview Road to the east would provide a significant reduction in noise in the adjacent Lynwood Village area.

The applicant states that the maximum daily train traffic consists of seven through trains per day and that CN forecasts as many as eighteen trains per day on this track with the anticipated partnership between CN and Canadian Pacific Limited (hereinafter CP) within the next two years.

The applicant submits that the average annual daily traffic volume (hereinafter AADT) for 1993 for Cedarview Road was 10,068 vehicles. The projected AADT for this segment of Cedarview Road for the year 2002 with Highway 416 open is 8,100 vehicles. This substantial reduction in traffic volumes can be attributed directly to the construction of Highway 416. In the event that Highway 416 is not constructed, the year 2002 projected AADT is 20,000 vehicles. Based on the above, traffic volumes for the years 1994 and 1996 are expected to be 11,171 and 13,378, respectively.

Based on the above traffic forecasts, the exposure factor (number of trains x the AADT) at the CN Beachburg Subdivision/Cedarview Road crossing would be increased to 240,000 by the year 1996. Since the present guidelines use an exposure factor of 200,000 to substantiate a grade separation, CN would be responsible for 50 percent of the cost for a grade separation between the Beachburg Subdivision and Cedarview Road within the next two years, if Highway 416 was not constructed.

The applicant provided the following table to support its position:

Exposure factors of Beachburg Subdivision and Cedarview Road

1996

• Without Highway 416/CP merger 13,378 x 18 = 240,816
• Without Highway 416 13,378 x 8 = 107,024
• With Highway 416/CP merger 4,077^{Note 1} x 18 = 73,386
• With Highway 416 4,077^{Note 1} x 8 = 32,616

2002

• Without Highway 416/CP merger 20,000 x 18 = 360,000
• Without Highway 416 20,000 x 8 = 160,000
• With Highway 416/CP merger 8,100 x 18 = 145,800
• With Highway 416 8,100 x 8 = 64,800

In response to comments submitted by CN, the applicant states that the future traffic and rail volumes are mentioned only to indicate that there is a strong potential for the exposure factor of 200,000 to be exceeded in the near future. When this occurs, the cost-sharing ratio would be 50/50 and therefore the request for a 15 percent contribution from CN for the Cedarview Road component is deemed to be reasonable.

In addition, the traffic volume indicated by CN is for 1993 and is not the 13,000 AADT expected in 1996. The future train volume, as provided by CN, was up to 17 trains per day which could be exceeded as early as 1996. This would then place the exposure factor over the 200,000 limit. Should this occur, and in the absence of the current project, CN and CP would likely be the major contributors for the Beachburg Subdivision Cedarview Road grade separation and their financial obligation would be far greater than under this proposal.

The applicant also stated that a significant difference exists between itself and CN in the interpretation of the Agency Guidelines. It is the understanding of the applicant that the proposed cost-sharing ratio of 85/15 for the Cedarview Road component of the subway is not based on the cross-product of traffic volume, but rather on who initiates and undertakes the project.

The applicant concludes that it cannot accept a contribution of $100,000 from CN since such contribution does not take into account the realities of what will occur at this crossing in the near future. In this regard, the applicant requests a ruling by the Agency regarding the ownership and the maintenance costs of the new subway.

POSITION OF CN

CN states that it has no objection in principle to the Highway 416 project and to the decision of the applicant to undertake the relocation of Cedarview Road; however, if there must be a contribution on the part of the railway company, it should be minimal, and should not exceed the present worth of any benefits accruing to the railway company.

To support its position, CN argues that Highway 416 is a new route and therefore, all costs for the construction and future maintenance of a rail-carrying structure for this highway should be the responsibility of parties other than CN. The cost-savings realized are solely for the benefit of the applicant and for the convenience of the motoring public. Without the Highway 416 project, no consideration would be given to the construction of a grade separation at the crossing of Cedarview Road and the Beachburg Subdivision. The relocation of Cedarview Road under the proposed structure is not an initiating element of the project but an added advantage undertaken for the convenience of the highway travelling public.

CN states that the present AADT count at Cedarview Road is 10,000 vehicles, while the rail traffic count is seven movements per day on this portion of the Beachburg Subdivision. The result is a cross-product of 70,000, which is well below the normally required exposure factor of 200,000 to warrant a grade separation.

CN does not agree with the applicant utilizing the projected rail traffic figures used in the proposed merged CN-CP operation over the Beachburg Subdivision under the Ottawa Valley partnership. CN states that it does not consider this assumption valid because the parties are still negotiating an agreement, which is not foreseen to be in effect before 1996 and because the net increase in traffic resulting from the merger will not exceed three trains per day. This would still not reach the exposure factor of 200,000.

CN also submitted that high train counts were quoted during the early stages of the proposed partnership with CP for joint operations over Beachburg Subdivision. High figures are often used during the early planning stages of such projects to permit the formulation of maximum limits for the evaluation of such factors as the environmental and social impact. However, when translating conceptual projects into physical works, CN believes that all parties like to use the most accurate facts and figures available.

CN further advises that it presently operates an average of seven trains (movements) per day at Cedarview Road and CP presently operates three trains per day on its nearby parallel route. While the proposal has been made to combine CP and CN traffic on the Beachburg Subdivision, present indications are that should this proposed partnership materialize it will not take effect until well after the Highway 416 grade separation has been completed. Based on current and historical patterns, any increase in the number of trains on a line will not exceed the normal economic growth of the region. Under a worse case scenario, the actual train count by 1998 would not exceed 12, and in all probability, will not exceed 10, based on present indicators, it could even be less. However, using the applicant's AADT forecast of 13,000 vehicles combined with any realistic train count produces an exposure factor ranging from 91,000 to a realistic maximum of 130,000, or a real optimistic theoretical factor of 156,000, which are all below the exposure factor of 200,000. Only the theoretical maximum exceeds the desirable exposure threshold under the applicant's own criteria. In addition, it is the understanding of CN that should CP traffic be diverted on the CN Beachburg Subdivision, the need for crossings on the present route of CP will be eliminated.

CN stated that the grade separation of Cedarview Road is solely driven by engineering and economic considerations as a result of the grade separation required for the new Highway 416.

Therefore, CN should not be expected to contribute to the cost of the grade separation of Cedarview Road on the basis of either safety improvements or requirements of the Agency Guidelines. However, CN accepts that it has certain cost responsibilities at the existing Cedarview Road crossing. On the basis that the Beachburg Subdivision will be retained for the next 60 years, CN contends that its contribution to the construction of this proposed grade separation should not exceed $100,000.

CN argues that the elimination of the at-grade crossing of Cedarview Road provides very little identifiable monetary benefit to the railway company and that it is prepared to offer a one-time contribution of $100,000 towards the project, on the condition that the applicant accept all construction and future maintenance costs.

The proposed contribution, equal to the present value of the responsibility of CN at the Cedarview Road crossing, covers the costs of maintenance of the crossing surface (CN being the junior party at this location) and 50 percent of the maintenance of the road crossing warning system. The present value figures, which also consider a liability risk factor, are based on a time span of 60 years, the expected life of a grade separation.

CN concludes that should the applicant not be prepared to accept the offer for a one-time contribution of $100,000, CN would then refer the matter to the Agency for resolution of any dispute over funding.

CN amended its position in respect of the future maintenance costs of the structure since a crossing is being eliminated. It is prepared to contribute 25 percent towards the future maintenance costs associated with the structural components of the abutments, piers and deck of the proposed structure. CN submits that it should not be responsible for any costs associated with the maintenance of the architectural features of this grade separation nor for any costs associated with the extensive retaining structures paralleling the road approaches. CN also submits that the decision to construct a subway instead of an overhead bridge has been made by the applicant and, likewise, it has choosen the retaining structures associated with this project.

AGENCY CONSIDERATIONS AND FINDINGS

The Agency, in the exercise of its authority, may determine all matters and things in respect of the proposal before it and, pursuant to section 204 of the Railway Act, may assign costs in the way it determines appropriate for any project authorized under sections 201 and 202 of the Railway Act. The Agency considers among other factors the need for the project, the benefits accruing to each party and the responsibility that each party has at the location.

In this particular case, the applicant and CN agree that all costs of construction of the Highway 416 component of the subway should be the responsibility of the road authority. The issues which remain unresolved are the responsibility for the cost of constructing the Cedarview Road component of the subway as well as the responsibility for the cost of maintaining the subway.

Both parties have submitted cost apportionment proposals with respect to the dispute. The applicant proposes to pay 85 percent of the Cedarview Road component of the subway as the party who initiates and undertakes the project. The applicant also proposes that CN be responsible for the remaining 15 percent and for the maintenance of the subway superstructure and substructure. On the other hand, CN is prepared to offer a one-time contribution towards the project on the condition that the applicant accepts all remaining construction costs. With respect to the cost of maintaining the subway, CN amended its original proposal and now offers to contribute 25 percent towards the future maintenance costs associated with the structural components of the abutments, piers and deck of the structure.

The Agency notes that the two-lane Cedarview Road will be relocated along Highway 416 so that both will be carried under the railway by one subway. The existing crossing at grade at Cedarview Road, where CN maintains the crossing and pays 50 percent of the crossing protection maintenance costs, will then be closed. The Agency also notes that the construction of Highway 416 will remove some of the vehicular traffic presently using Cedarview Road.

The purpose of the present application is to obtain approval to construct a grade separation to carry Highway 416 and Cedarview Road under the CN Beachburg Subdivision. Therefore, in considering the need for the Cedarview Road component of the project, the Agency will use only the AADT taking into consideration the presence of Highway 416 (8,100 vehicles in 2002, interpolated to 4,077 vehicles for 1996).

In view of the recent submissions filed by CN and CP, the Agency acknowledges the fact that rail traffic will likely vary on the Beachburg Subdivision with the potential integration of train traffic in the Ottawa Valley. In this instance, the Agency considers that the maximum train count advanced by CN (i.e. 12 trains per day) is appropriate for this analysis.

The Agency notes that, based on the above traffic, the cross-product at Cedarview Road is expected to be in the order of 48,924 by 1996 and 97,200 by 2002. On the basis of the submissions before it in this particular case, the Agency is of the opinion that the Cedarview Road component of the subway is not required.

If the applicant wishes to accommodate Cedarview Road in the construction of its subway for Highway 416 because of their proximity, it should be authorized to do so at its own expense. However, the Agency cannot overlook the benefits that the closure of any crossing has on railway operations. In this respect, the Agency has considered the proposed contribution of $100,000 by CN and is of the opinion that this contribution is appropriate given the circumstances at this particular location.

The Agency notes that the applicant is prepared to pay the cost of maintaining the retaining walls of the subway. The dispute is therefore on the proportion of the maintenance costs that each party should pay for the remaining structural elements of the subway (i.e. substructure and superstructure).

The applicant considers that the cost of maintaining the substructure and superstructure of the entire subway (i.e. the Cedarview Road and Highway 416 components) should be paid by the railway company. CN, on the other hand, is prepared to contribute 25 percent towards the future maintenance costs of the structural components of the abutments, piers and deck of the structure.

The Agency is of the opinion that the percentage of the maintenance costs that CN is prepared to pay is equivalent to the proportion of the Cedarview Road component of the entire subway, as estimated by the applicant in its financial plan.

The Agency considers the remaining portion of the subway (i.e. the Highway 416 component) to be on a new route. According to the Agency Guidelines, the cost of maintaining a basic grade separation on a new route is normally paid by the party deciding to construct the new route. For that reason, the cost of maintaining the Highway 416 component should be paid by the applicant.

The Agency is therefore of the opinion that 25 percent of the future maintenance of the structural components of the abutments, piers and deck of the structure should be paid by CN. The balance of the costs of maintaining the subway should be paid by the applicant.

An order to this effect will be issued.