Decision No. 82-R-2000

February 7, 2000

File No. R8030/W6

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COMPLAINT

On July 23, 1999, Brian Bickley (hereinafter the complainant) filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) concerning the noise and diesel fumes emanating from the locomotives of the St. Lawrence & Hudson Railway Company Limited operating on behalf of the Canadian Pacific Railway Company (hereinafter SL&H) near the complainant's residence on Yeo Street, in Woodstock, Ontario.

The complaint focuses on the amount of time that diesel locomotives are left idling in the Woodstock Yard adjacent to his residence causing noise and air pollution.

In subsequent correspondence, the complainant also advises that:

1. SL&H's cars often block Hunter Street creating a potentially dangerous situation;
2. SL&H is whistling excessively at the Hunter Street road crossing;
3. the access gate to the Yard is left open allowing trespassing by young children playing on railway property;
4. trucks accessing or leaving the Yard through the above gate via Yeo Street are causing damage to the street;
5. creosoted ties are being stockpiled next to the residence at Yeo Street, causing an unpleasant odour; and
6. weeds have been left to overgrow on railway property, thereby spreading to the properties on Yeo Street.

On October 4, 1999, SL&H filed its answer to the complaint and on October 6, 1999, the complainant filed his reply and also advised that he represented the concerns of the residents living in the affected area of Yeo Street.

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 application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline to February 7, 1999.

ISSUE

The issue to be addressed is whether SL&H, in the exercise of 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

With respect to the blockage of the Hunter Street road crossing raised by the complainant, SL&H advises that Rule 103(c) of the Canadian Railway Operating Rules (hereinafter the CROR) applies, that is that a stationary train cannot block a crossing for more than five minutes. SL&H also advises that it issued a bulletin to its train crews on September 8, 1999 addressing this matter and that the issue would be monitored by supervisory staff. The complainant maintains that SL&H continues to block the road crossing for longer periods of time thereby creating unsafe situations.

With respect to the issue of excessive whistling, SL&H submits that it is required by law to sound the whistle within a quarter mile of the crossing in accordance with Rule 14(l) of the CROR. The complainant submits that due to the slow speed of trains approaching the crossing, whistle signals are sounded as many as eight times, which he contends constitutes noise pollution.

With respect to the complainant's concerns regarding trespassing on railway property as a result of the access gate at the end of Yeo Street being left open, SL&H states that it will keep this gate closed and locked by maintenance-of-way employees when not in use.

The complainant also raises the issue of the damage caused to Yeo Street by the trucks entering and exiting SL&H's Yard. The complainant submits that this heavy equipment has seriously depreciated Yeo Street and caused sewer problems along this street. The complainant also points out that when several truckloads of stone were removed from the Yard, numerous stones were left strewn along Yeo Street. SL&H states that while it will try to reduce its truck traffic over Yeo Street, as a taxpayer it is entitled to use this road to access its Yard. The complainant responds that SL&H's answer does not address the issue of damaged sewers or the stone strewn along Yeo Street.

The complainant states that the present storage area for stockpiling of creosote ties in SL&H's Yard behind the residence at 80 Yeo Street is a source of pollution and that it should be relocated to the far end of the Yard. SL&H advises that the present location for the storage of its ties best suits its loading and unloading of material in the Yard. While SL&H states that relocating these ties to the far end of the Yard would not provide an optimum operation, it is prepared to review this matter to seek a possible solution.

The complainant, in addition to his concerns regarding the chemicals used by SL&H for the spraying of weeds along its right of way, complains that the weed spraying and cutting program followed by SL&H is carried out after weeds go to seed, thereby permitting these weeds to spread to properties on Yeo Street. SL&H advises that approved chemicals are used and applied by licensed applicators and that this program is scheduled, taking into account manpower restrictions. Weeds are cut twice a year.

The complainant states that SL&H's locomotives are left idling near his home for an inordinate amount of time causing noise and air pollution resulting in his family having to leave their backyard and go into their home to avoid the noise and pollution. SL&H states that its policy is to shut down its locomotives if they are to be stationary for more than one hour. It also states that it would look into having "smart start" locomotives introduced to the Woodstock area. The complainant is of the view that SL&H is not adhering to its own shutdown policy.

In summary, the complainant states that SL&H's attention to pollution, whether it be noise, creosoted ties, weeds or diesel fumes, is less than co-operative.

On November 9, 1999, Agency staff met with the parties at the site to discuss possible solutions to the problems experienced by the complainant. It was agreed that whistling, road crossing blockage and trespassing are the responsibility of Transport Canada and that the parties would pursue these issues with that organization.

During the meeting, an agreement was reached between the parties on a number of solutions to the problems experienced by the complainant. The solutions agreed to by the parties are as follows:

• SL&H agreed to replace, within one month, the access gate at the end of Yeo Street and install a high security lock. Operations employees are to keep this gate locked when not in use. A bulletin to this effect will be issued;
• SL&H agreed to store from now on new ties at a location near its track, away from the present location near the residence at 80 Yeo Street. SL&H advised that as it used up the ties stored at the present location, new ties would be stored at the new location;
• with respect to the damage and spillage caused by trucks entering or exiting the Yard via Yeo Street, it was agreed that the complainant would report these incidents to the police;
• with respect to weed control, the parties agreed that SL&H would continue to spray its right of way for weeds and try to schedule its spraying when it is most effective in curtailing weeds;
• in order to minimize the noise and fumes emanating from idling locomotives, the parties agreed that by this spring, SL&H would equip all of its switchers and yard engines in the Woodstock area with "smart starts"; and
• SL&H agreed to undertake an education program this summer with its engineers to inform them of the importance of fuel conservation and the reduction of pollution. Bulletins to this effect will be issue to its train crews.

Minutes taken by Agency staff at the site meeting, outlining the above agreement, were circulated to both parties, who confirmed that the content of these minutes are consistent with their positions.

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, cuttings 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 water-course 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 else 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.

The Agency takes note of the efforts made by both parties to resolve the problems and of the agreement reached by the parties.

The Agency notes that SL&H has already started implementation of the measures set out in the agreement as it has replaced the access gate at the end of Yeo Street and installed a high security lock. It has also published Bulletin No. W005 dated January 12, 2000 advising its operations employees that this gate must be locked at all times upon exiting the premises. In addition, SL&H has completed the relocation of the creosoted ties formerly stored adjacent to the residence at 80 Yeo Street.

The Agency also notes that SL&H will install "smart starts" on all of its switchers and yard engines in the Woodstock area this spring and that an education program for operations employees will be undertaken this summer to minimize noise and fumes emanating from idling locomotives.

The Agency has considered the matter and finds the agreement reached by the parties to be acceptable. The Agency is satisfied that once the measures committed to by SL&H are implemented, along with those already in place, SL&H will be doing as little damage as possible in the exercise of its powers.

CONCLUSION

With the implementation of SL&H's commitments as set out in the minutes of the site meeting and agreed to by the parties, the Agency determines that SL&H 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 SL&H with respect to this complaint.