Decision No. 81-R-2000

February 7, 2000

File No. R8030/S5

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COMPLAINT

On March 5, 1998, Annette Bernetchez (hereinafter the complainant) filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title. The complainant attached a petition signed by her and nearby residents, all of whom raised concerns with respect to railway noise, vibrations and pollution and expressed a desire to reach a satisfactory solution with the Canadian Pacific Railway Company (hereinafter CP) in this regard.

On June 4, 1998, CP filed its answer to the complaint of Mrs. Bernetchez. The parties then agreed that before proceeding further, they would await the results of a noise study of the Sudbury Yard commissioned by CP. The complainant also agreed to have noise and vibration levels measured in and around her residence at 2-242 Van Horne Street.

On April 16, 1999, CP filed with the Agency a report entitled Environmental Study of Noise and Vibration from the CPR Sudbury Railway Yard Between Worthington Crescent and Elgin Street Sudbury, Ontario, dated March 11, 1999, prepared by SS Wilson Associates, Consulting Engineers.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the complaint is received, unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until February 7, 2000.

ISSUE

The issue to be determined is whether CP, in exercising its powers, has done as little damage as possible, as provided for in subsection 95(2) of the CTA, and if not, what action should be taken by the Agency, if any.

POSITIONS OF THE PARTIES

Mrs. Bernetchez complains of noise, vibrations and pollution caused by idling trains by the Paris Street overpass. CP states that in its Sudbury Yard operations, locomotives are not left idling near the east end of the Yard, under the Paris Street overpass or in areas nearby. Locomotives east of the station do not remain in the area once switching is completed. Further, the length of time the locomotives are switching in this area is minimal, particularly during the night.

On May 26, 1999, a site meeting attended by the complainant, officials of the St. Lawrence & Hudson Railway Company Limited which now operates in the area on CP's behalf, Agency staff and Transport Canada staff was held at the Elgin Street station in Sudbury.

At the meeting Mrs. Bernetchez stated that she has been awakened most nights by noise and vibrations caused by idling trains in the Yard across from her home and near the Paris Street overpass (at the east end of the Yard). She says that the noise starts around 3:40 a.m. and continues until 5 or 6:00 a.m. The noise is most apparent on Wednesday night/Thursday morning and on weekends.

With respect to the noise and vibrations experienced at the complainant's residence, CP refers to the above-noted noise study which states, in part:

Neither sound levels (general in Leq dBA or impulsive in L_LM dBAi) nor ground-borne vibrations due to train activities/operations within the CPR Yard, were detected at the residences located at #471 John Street (to the south-east of the yard) and at #2-242 Van Horne Street (to the north of the yard). This is mainly due to their distance setbacks from the yard and the acoustic shielding by the buildings in the intervening ground. Therefore, we find that noise and vibration from railway operations to be of no concern at these properties.

CP explains that the only activity in the Yard during the night is the routine making up of trains by crews that come on duty at 11:00 p.m. CP points out that once its crews' switching assignments have been carried out they are paid for the entire shift. The crews, therefore, have a strong incentive to finish early, usually well before 3:00 a.m. CP states that it does not switch its cars at the east end of the Yard but across or to the west of the station and that its yard locomotives have been fitted with a "Smart Start", a device which shuts an engine down if it is left idling for more than a few minutes.

CP states that as there is no other industry in the area, it is unable to identify the source of the noise referred to by the complainant, particularly at the time when the complainant submits this noise occurs.

CP advises that since its meeting with the complainant, it has undertaken measures to mitigate rail noise in its Sudbury Yard, namely:

1. as of September 8, 1999, it ceased the practice of kick switching and instead will push equipment to couple or rest in the Yard between the hours of 11:00 p.m. and 6:00 a.m.; and
2. as of September 8, 1999, it ceased parking gang equipment on the tracks next to Worthington Street and will move it to the car shop area, which is an industrial area at the west end of the Yard.

CP also agreed to undertake additional measures to mitigate rail noise, vibrations and pollution in its Sudbury Yard near the Paris Street overpass, namely:

1. issue, no later than January 28, 2000, a bulletin to train crews sensitizing them about noise complaints from residents adjacent to the Sudbury Yard and instructing them to handle their trains in such a manner as to minimize banging sounds caused by train buff and draft forces (slack action) when entering into or departing from the Sudbury Yard;
2. issue, no later than January 28, 2000, a bulletin to train crews instructing them to shut off their locomotive engines in cases where they will have to idle for 60 minutes or more, weather conditions permitting;
3. remove the frog and straight line the switch at the east end of number one track in the Sudbury Yard no later than April 30, 2000; and
4. perform tests regarding the manual lubrication of rails at the east end of the Sudbury Yard near the Paris Street overpass, once the above frog has been removed and the switch has been straight lined. The results of these tests shall be provided to the Agency no later than May 31, 2000.

ANALYSIS AND FINDINGS

The Agency has accepted this complaint as one falling within the ambit of section 95 of the CTA.

Subsection 95(1) of the CTA sets out the powers a railway company may exercise for the purpose of constructing or operating its railway. Subsection 95(1) states that:

(1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

(a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cutting and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

(b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

(c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

(d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

(e) do anything necessary for the construction or operation of the railway.

Subsection 95(2) of the CTA states that:

(2) The railway company shall do as little damage as possible in the exercise of the powers.

Section 37 of the CTA states that:

The Agency may inquire into, hear and determine a complaint concerning an act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

Pursuant to these legislative provisions, the Agency has the jurisdiction to hear and determine this complaint.

In light of the uncertainty as to the source of the noise and vibrations, it was the position of both the complainant and CP that further investigation into the source of the noise should be conducted especially between the hours of 3:00 a.m. and 4:00 a.m. and that this be carried out by Agency staff.

On September 21, 1999, Agency staff visited the Sudbury Yard. Agency staff observed train activity at the east end of the Sudbury Yard between 11:00 p.m. and 5:00 a.m. on the night of September 21, 1999 and the morning of September 22 as well as the evening of September 22, 1999. Staff observed that the railway company does switch at the west end of the Yard. However, Agency staff also identified noise and pollution at or east of the Paris Street overpass caused by considerable through train activity, both in the course of idling, setting off and lifting cars, and passing through the Yard. These noises can sound similar to shunting.

The Agency notes that several CP through trains pass through the Yard during the night and perform work at this location. In addition, the Huron Central Railway Company's (hereinafter HCR) pulp train passes through the Sudbury Yard at approximately midnight, four times a week.

With respect to CP's through trains, Agency staff observed several sources of noise, both general and impulse, such as accelerating and idling locomotives, wheel squeal, the thumping of rail cars passing over a switch and the noise associated with the slack action between rail cars. In addition to the through trains operated by CP, the pulp train operated by HCR, both loaded and empty, also caused noise in the form of squealing, thumping and banging due to the slack action. The Agency is of the view that the activity of through trains in the Yard across from the complainant's residence does constitute the major source of noise referred to in this complaint.

The Agency is aware that HCR, as a result of noise complaints from parties adjacent to the Sudbury Yard, has agreed to advise its crews to abide by any regulations with respect to unnecessary train noise even though HCR does not fall under the jurisdiction of the Agency.

The Agency also notes the mitigative measures taken by CP with respect to the requirements that crews push shunt cars between the hours of 11:00 p.m. and 6:00 a.m. in order to reduce the noise of shunting by local switchers and that gang equipment be parked in the car shop area at the west end of the Yard, so as not to bother residents adjacent to the Yard when this equipment is started up in the morning.

CP has agreed to issue a bulletin to its train crews to sensitize them to the noise complaints from residents adjacent to the Sudbury Yard and instruct them to handle their trains so as to minimize the banging sounds caused by slack action when entering into or departing from the Sudbury Yard. In order to reduce idling noise, vibrations and pollution, CP has also agreed to issue a bulletin to its crews instructing them to shut down their locomotive engines in cases where they will have to idle for 60 minutes or more, weather conditions permitting. It is expected that during extended periods of idling, the railway company will make its best efforts to locate its locomotives away from the east end of the Yard. The Agency notes that CP has issued the aforementioned bulletins on January 27, 2000.

Further, CP will remove the frog and straight line the switch at the east end of number one track in its Sudbury Yard, no later than April 30, 2000, in order to mitigate the thumping sounds of rail cars passing over this switch. Once this work has been carried out, CP has agreed to perform tests regarding the manual lubrication of rails at this location to determine the effectiveness in reducing wheel squeal. The results of these tests are to be provided to the Agency before May 31, 2000.

The Agency has considered the mitigative measures put in place by CP as well as the measures it intends to take to mitigate noise, pollution and vibrations resulting from both local railway activities and through train operations. The Agency is of the opinion that once the mitigative measures committed to by CP are implemented, along with those already in place, the railway company will be doing as little damage as possible in the exercise of its powers.

CONCLUSION

The Agency determines that as a result of the mitigative measures put in place by CP and the commitments made by it, CP will have met its obligations under subsection 95(2) of the CTA, that is to do as little damage as possible in the exercise of its powers.

Therefore, the Agency will not require any further action beyond that already committed to or undertaken by CP.