Letter Decision No. LET-R-148-2012

In its Decision No. LET-R-51-2012, the Agency requested further additional information from CP to allow Agency staff to complete the analysis of the issues raised by the complainants.

On March 19 and 20, 2012, Agency staff conducted a site visit to the Alyth Yard to gain a better understanding of the general area and CP’s maintenance operations. Agency staff produced meeting minutes of the site visit, which were accepted by the parties and form part of the pleadings before the Agency.

On April 4, 2012, the complainants filed additional information with the Agency related to CP acquiring land for the purpose of building a turntable style turnaround track adjacent to CP’s Alyth Yard. In its Decision No. LET-R-68-2012, the Agency requested that CP respond, by May 1, 2012, to the assertion made by the complainants with respect to the future noise the turnaround track may cause, giving the complainants an opportunity to reply by May 7, 2012. In its  Decision No. LET-R-93-2012, the Agency determined the additional information filed by the complainants was not relevant to the current proceedings.

OPERATIONS AT ALYTH YARD

The following uncontested information in relation to Alyth Yard was provided by the parties during the site visit and in their submissions to the Agency.

Alyth Yard is located adjacent to CP’s mainline, in the community of Inglewood in Calgary, Alberta. As an inner-city community, Inglewood surrounds much of Alyth Yard. It is a mixture of low and high density housing, heavy and light industrial, transportation corridor and commercial zoning with a population of approximately 3,220 inhabitants.

The complainants’ residences are located north of the Alyth Yard LRC, at distances ranging from 60 to 1000 metres.

The Alyth Yard encompasses 170 acres, 75 miles of track, approximately 500 turnouts, and an automated Hump Yard with 48 classification tracks, the LRC, and a car repair facility. CP states that Alyth Yard serves many customers as a consolidation point for large volumes of freight.

CP’s records show that mechanical repair activity has been occurring at Alyth Yard since the 1950’s. Since 2009, CP has upgraded and consolidated its entire network maintenance operation locations from eight to four “super repair shops,” which CP now calls LRCs. The four LRCs are located in Calgary, Winnipeg, Toronto and St. Paul, Minnesota. The Alyth Yard LRC absorbed the repair activities previously performed at CP’s Coquitlam Yard.

When CP consolidated its activities, it retrofitted the Alyth Yard LRC to accommodate an increased number of locomotives. The modifications included a capacity expansion which was completed by 2010 at the LRC in order to accommodate the larger diesel locomotives. Part of the expansion included raising the roof to install heavy duty 3 tonne overhead cranes to increase repair capabilities. CP also constructed a Suspension Bearing Inspection facility (SBI), which is a standalone building southeast of the main diesel shop, which incorporates a pit to allow inspection of the suspension bearings, and the changing of brake shoes. This activity, which used to be done in the LRC building, was moved in order to increase capacity for larger repairs within the LRC itself.

As a result of the consolidation, CP increased its locomotive assignments to Alyth Yard from 191 in 2009 to 442 locomotives in 2012. In 2007, 227 locomotives were assigned to Alyth Yard. The decrease in the number of locomotives assigned to the Aylth Yard LRC between 2007 and 2009 is attributed by CP to the economic downturn observed during this period.

The LRC now operates 24 hours a day, seven days a week. As part of the LRC repair process, CP performs inbound and outbound load testing on its locomotives outdoors. These tests range from 20 minutes to an hour of continuous operation at high throttle settings. Inbound load testing is performed when a locomotive arrives at the LRC to determine if and what repairs are required. Outbound load testing involves bringing the locomotive to full throttle after it has been repaired to ensure that the locomotive requires no further repairs prior to it being assigned to a train. CP measures its repair performance by establishing repair cycle times, which assist CP in determining its locomotive availability when building its trains.

Load testing is generally an unscheduled activity and can occur at any time during a 24-hour period based on the traffic and demand. Alyth Yard has both shop tracks, which are used by maintenance and repair staff to move the locomotives around the LRC while they are being serviced, and yard tracks, which serve as the classification and holding area for arriving and departing trains. This distinction is significant as the tracks are “owned” by two separate unions. Employees who are certified to move locomotives on the shop tracks may not have the qualifications to move locomotives to the other tracks.

In 2011, an average of 25 locomotives per day were repaired or serviced with each locomotive having an average cycle time (or throughput) of 45 hours. Of the 25 locomotives, approximately 6 to 10 locomotives were outbound load tested per day. The duration of a typical outbound load test is approximately 60 minutes, with the engine at full throttle (notch 8). In 2011, typically 10 to 15 inbound load tests were performed daily at the Alyth Yard LRC. This number reflects the use of the “Expert on Alert” technology as a pilot project, which reduces the number of inbound load tests required by 70 to 80 percent. Inbound load tests are shorter in duration than outbound load tests, with an average period of 20 to 30 minutes at full throttle (notch 8). Approximately 25 load tests are performed in a 24-hour period and some may be conducted simultaneously.

Conversely in 2007, approximately 15 locomotives per day were repaired or serviced, including an average of 3 to 4 load tests per day. Cycle times in 2007 were in the range of 60 to 70 hours. Based on CP’s submissions, there has been a fivefold increase in the number of inbound and outbound load tests between 2007 and 2012.

Initially, CP performed its load testing on whichever of the available shop tracks involved the least amount of movement for the locomotive. In response to community concerns, CP changed its operations so that outbound load testing is now performed on the four tracks south of the LRC building. Additional locomotive movement is required in order for CP to perform its testing in this area and is done at additional cost.

When the inbound shop tracks are at capacity, CP performs inbound load testing near a bird sanctuary. CP contends that this arrangement is an inconvenience, as it requires moving crews and equipment approximately 1.5 miles to conduct the tests. According to CP, there are no environmental regulations that restrict it from inbound load testing near the bird sanctuary.

The number of locomotives idling while awaiting a move varies from day to day and depends on various factors including, the number of locomotives that have entered Alyth Yard for unscheduled visits. The number normally ranges from 0 to 25 locomotives per day and can exceed that depending on the number of locomotive failures. Also, if the locomotives dedicated to Alyth Yard are accounted for, more than 30 locomotives could be idling in the Yard at a given time. Pre-consolidation numbers of idling locomotives at a given time is difficult to assess, but CP estimates that it could have been approximately 15.

CP uses “smart start” technologies on its locomotives. This technology monitors a defined number of parameters such as ambient temperature (+5 degrees Celsius or above), engine temperature, and battery voltage. When all conditions are met and the engine is sitting idle, the locomotive diesel engine automatically shuts down, saving fuel and reducing noise. Locomotives that are not equipped are subject to internal policies to manually shut them down when similar conditions exist.

POSITIONS OF THE PARTIES

The complainants

In their application, the complainants state that Inglewood is Calgary’s oldest community, dating back to the 1800’s. Currently some homes date back to 1910 which pre-dates the existence of CP’s locomotive maintenance facilities at Alyth Yard.

The complainants contend that CP uses the Inglewood Redevelopment Plan to illustrate that Inglewood is less than one-third residential. The complainants argue that this fact illustrates Inglewood is not an industrial zone, but is mixed use zone with almost one-third being residential, a fact that must be taken into account by industry operating in the area.

The complainants state that prior to 2009 they had no issues with CP’s operations at Alyth Yard, as they understood that they lived in close proximity to the yard and could accept a reasonable level of noise. The complainants submit that it was not until CP’s consolidation of its locomotive repair facilities, that noise, specifically from load testing and idling locomotives waiting in the queue, became a problem.

According to the complainants, residents of Inglewood did not hear full throttle engine testing noise prior to the consolidation. They speculate that testing may have been done inside the LRC, elsewhere in the Yard, or that different, less abrasive engines were the norm in the Yard in years past. The complainants submit that full throttle testing is now clearly audible.

The complainants assert that the issue is not ambient noise and other sounds in the area are not cause for complaint. The complainants can discern between locomotives, airplanes and the other sounds that are specific to the area and state that they can clearly tell the difference between 20 seconds of overhead aircraft noise and 20 to 45 minutes of locomotive load testing and idling locomotives. Aircraft do not hover near residences for 24 hours, nor do they park nearby and rev their engines at full throttle. The complainants contend that the noise from locomotive load testing is clearly discernible, especially during lulls of traffic and argue that unlike the Yard noise, which is constant in nature. The ambient noise from road and aircraft traffic is not continuous.

The complainants also point out that the LRC building is an old tin building, and it cannot be considered as a proper noise barrier. The complainants add that testing often occurs north of the LRC building and therefore the building does not provide any shielding.

The complainant’s state that load tests are most frequent between the hours of 4 p.m. and 6 a.m., but vary depending on traffic and idling occurs routinely 24 hours a day, every day.

The complainants do not dispute the fact that the consolidation of maintenance operations was done for efficiency purposes. The complainants state that CP created the problem by consolidating load testing to Alyth Yard and that cost-effective measures are not necessarily the most effective with regard to noise and vibration.

The complainants indicate that their issue is not related to CP’s hump yard and classification operations but rather to the locomotive maintenance and idling that occurs in close proximity to the residential area of Inglewood. The complaints submit that CP did not take their neighbours into account when it upgraded and consolidated its facility.

The complainants refer to the Proximity Guidelines and Best Practices (Proximity Guidelines) issued in 2007 by the Railway Association of Canada (RAC), which recommend a minimum distance of 300 m between residential buildings and rail yards. The complainants submit that CP was well aware of the Proximity Guidelines through its participation on the RAC Proximity Guidelines Subcommittee and the recommendation for a 300 m minimum distance between rail yards and residences. CP doubled operations at Alyth Yard, where residences are within 60 m of the Yard, completely disregarding neighbors. The change was forced upon residents of Inglewood. The complainants argue that CP violated section 95.1 of the CTA by consolidating its operations to Alyth Yard without taking into account the area in which CP operates.

The complainants refer to decibel readings that had been taken, which exceed recommended decibel levels: inside the house 65-80 decibels (recommended 35 decibels); and outside the house 90-130 decibels (recommended 55 decibels). However, the complainants did not file any other information with respect to details of how or when these readings were taken.

The complainants also filed audio/video recordings made at various residences. The videos show glass windows and dishes rattling and what sounds like locomotives idling and locomotive load testing. However, no details were provided as to how and when these recordings had been made.

The complainants state that for approximately two years the health and well-being of Inglewood residents have been compromised by CP’s blatant disregard for the community. The complaints maintain that some residents suffer from sleep deprivation and headaches due to the constant noise and some suffer anxiety and panic attacks. A doctor’s note filed by one of the complainants suggests that this may be attributable to the constant noise and vibration from CP’s operations at Alyth Yard.

The complainants point out that some of the residents wear ear plugs in order to sleep at night, while others play relaxation music to counteract the effects of the noise and vibration. One complainant tried to insulate against the noise by installing Styrofoam over her windows, without success.

The complainants do acknowledge CP’s efforts to reduce noise and vibration from Alyth Yard in the last year. However no quantifiable measurements of changes have been submitted to the community.

CP

CP states that Inglewood is less than one-third residential with the remainder being approximately 39 percent industrial, 9 percent vacant, 4 percent multi-family and 10 percent recreational.

CP states that Alyth Yard is bordered by a number of noise-creating environments and these include provincial highways, major industrial roadways such as Blackfoot Trail, industrial development, an oil refinery and overhead airplane traffic. It is submitted that all of these create ambient noise or vibration.

Referring to the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology), CP states that the area is somewhere between an “urban residential” and “noisy urban residential” neighbourhood, which has an estimated baseline sound level between 60 to 65 dBA during the day and 50 to 55 dBA during the night. CP states that the Agency recognizes that in these areas the baseline sound is “acceptably higher.” CP points out that the complainants have not filed any noise data. However, CP claims that any measurements taken “will not offend the estimated baseline levels of acceptability established by the Agency.” 

CP filed the Canada Mortgage Housing Corporation Road and Rail Noise Effects on Housing Guideline dated 1981 (CMHC Guideline). CP states that this document indicates that CMHC accepts railway noise as a component of modern life in urban settings and that in the simplest terms, ongoing sound levels from railway noise of 55 db or less do not raise any housing issues in terms of location and coexistence.

CP further states that the CMHC Guideline references higher ongoing sound levels, termed “intermediate zone”, in the 55 to 75 db range. These also do not present an issue as long as the housing incorporates adequate sound installation. It is only in the “upper zone,” which is identified as ongoing sound levels in excess of 75 db, which creates the impediment to new housing adjacent to sound creating traffic or operations. CP argues that this suggests that that there must be an acceptance by the nearby residents of noise and that there would be an obligation on the part of the residents to take measures to mitigate the noise, which the complainants have failed to do.

CP contends that, taking into consideration the context of where these operations are taking place, in an area with substantial ambient noise levels, CP operations cannot be found to create unreasonable noise or vibration.

CP states that the change from Coquitlam Yard to Alyth Yard was undertaken for railway efficiency and safety purposes. CP further states that the dispersed approach to unit maintenance and repair resulted in inefficiency and quality issues as it was difficult to maintain repair standards.

CP asserts that load testing is performed for safety and warranty purposes and that it is done at Alyth Yard in accordance with industry load testing standards. CP confirms that up to 50 percent of load tests can occur between the hours of midnight and 6 a.m.

CP confirms that it has modified its operations with respect to load testing. Previously CP performed load tests on any available track to minimize locomotive movement, now all outbound load testing is done on the four tracks south of the LRC which, according to CP, allows for some shelter to the community from noise associated with load testing. CP states that this change was made in response to community concerns but that it involves additional costs. CP states that outbound load testing now occurs behind the LRC to lessen the impact on the community of the noise created by outbound load test.

CP indicates that some of its inbound load testing is performed on CP tracks N-18 and N-19 near the bird sanctuary at some distance from the complainants’ homes and approximately 1.5 miles away from the LRC building. However, CP states that this is not a preferred practice because it requires movement of a repair crew and material, which makes the operation inefficient. CP also considers the load testing in this area to raise safety concerns, as load testing in this area is done adjacent to tracks reserved for hazardous material shipments. CP indicates that they perform load tests in this area only when there is congestion near the LRC building.

The “Expert on Alert” technology, a General Electric (GE) pilot project, involves real time monitoring and diagnostics, automated repair recommendations and the expertise of GE technicians. The technology allows CP to do a “ping” health check on the engines before they arrive at Alyth Yard, significantly reducing the number of units requiring inbound load testing. CP states that roughly 70 to 80 per cent of inbound load testing was diverted through the use of the “Expert on Alert” technology. CP is developing a business case to purchase this new technology.

CP states that it has moved its Gen 1 locomotives to St. Paul, Minnesota and has replaced some of them with the newer Gen 2 locomotives. CP claims that the Gen 2 locomotives have a quieter process. However, CP indicates that it does not exclusively repair locomotives assigned to the Alyth Yard LRC but repairs any locomotive that needs repair while it is in the area and, therefore, Gen1 locomotives may continue to be serviced at the Alyth Yard LRC.

CP disputes the complainants’ assertions regarding harm and health as they are only supported by evidence with respect to one of the complainants. CP states that in this case the complainant lives approx. 60 m from Alyth Yard and there is no information with respect to whether or not this individual has a pre-existing condition and there is no clear connection, apart from a rather brief medical conclusion, that CP’s operations caused the problem.

CP maintains that moving an operation, or in this case a mechanical facility, to another yard or location within Alyth Yard is not a reasonable solution. This will simply move the perceived problems from one geographic location to another.

CP contends that reducing the number of locomotives being maintained at Alyth Yard is not an option. Repair and maintenance work is mandatory and must be performed on an around-the-clock basis.

CP argues that there are three major considerations to the Agency’s assessment of the reasonableness of the noise: (1) the railway company’s level of service obligations under sections 113 to 114 of the CTA, (2) the railway company’s obligation to follow operational standards that are safe, efficient and effective and (3) the location of the railway operation. With respect to the third consideration as it applies to the operation of a yard, CP argues that what is reasonable must be assessed against benchmark or regular impacts of established industry yard practices. CP further argues that if railway operations are consistent with established industry operating standards or practices, section 95.1 of the CTA cannot be found to have been breached.

CP submits that its operations at Alyth Yard are mandated within the profiles of typical or industry standard yard activities for North American railway companies in terms of nature, duration and scope of activities, and that the noise at Alyth Yard is therefore not unreasonable within the meaning of section 95.1 of the CTA.

ANALYSIS AND FINDINGS

The Law

The CTA was amended in 2007, adding provisions relating to noise and vibration caused by railway companies when constructing and operating railways. Specifically, section 95.1 of the CTA imposes an obligation on a railway company to cause only such noise and vibration as is reasonable taking into account its level of service requirements, its operational requirements and the area where the construction or operation takes place.

Section 95.3 provides the Agency with the authority to determine whether or not a railway company is complying with this obligation and, if not, to order the railway company to undertake any changes to its railway construction or operations that are reasonable that would ensure continued compliance with that company’s noise and vibration obligations under section 95.1 of the CTA.

Pursuant to section 95.2 of the CTA, the Agency has issued Guidelines for the Resolution of Complaints over Railway Noise and Vibration (Guidelines). The Guidelines set out the elements that the Agency considers when determining whether a railway company has caused only such noise or vibration as is reasonable. These elements are:

• railway operations in the affected area, including any relevant changes;
• the characteristics and magnitude of the noise or vibration;
• relevant noise or vibration measurements or studies;
• the presence of other ambient noise, such as highways;
• the impact of the noise or vibration disturbance on persons affected;
• relevant standards to assess the significance of the effects of noise and vibration levels;
• available mitigation methods and technologies that are cost-effective and operationally feasible;
• mitigation efforts made by the parties; and,
• any other issues relevant to the complaint.

It is clear from the legislative framework and the national transportation policy contained in section 5 of the CTA that, in exercising its mandate under section 95.3, the Agency must balance the interests of the parties. Railway companies and urban transit authorities, on the one hand, are involved in activities that necessarily cause noise and vibration, and these activities are also required to fulfill their various level of service obligations and operational requirements, and to maintain the “competitive, economic and efficient national transportation system...that serve[s] the needs of its users, advance[s] the well-being of Canadians and enable[s] competitiveness and economic growth in both urban and rural areas throughout Canada.” However, on the other hand, the interests of communities affected by this noise and vibration must be considered by the railway companies and urban transit authorities in determining how best to perform the activities in order to meet their obligations under section 95.1.

Analysis

In this case, the subject of the complaint is the noise and vibration caused by CP’s locomotive repair operations at the Alyth Yard LRC. The complainants’ issues are with the noise caused by the idling of locomotives at any location on the LRC’s tracks and the noise caused while CP performs inbound and outbound load testing outdoors, which requires the revving of the engine at full throttle for long periods. No allegation or evidence has been presented with respect to other potential sources of noise or activities taking place at CP’s Alyth Yard.

Further, the  complainants allegation of breach of section 95.1 of the CTA by CP relates to the change in the operations resulting from CP’s decision to consolidate its network’s locomotive repair operations. In fact, the complainants clearly indicated that prior to 2009, they did not hear full throttle engine testing noise.

Therefore, the issue to be determined in this case is whether CP continues to cause only such noise and vibration as is reasonable, despite the increase in idling and load testing associated with the centralized operation at the Alyth Yard LRC since 2009.

The evidence shows an increase in the number of locomotives serviced at the Yard since 2009, made possible by the improvements made to the LRC building and the construction of the Suspension and Bearing Inspection Facility. This additional repair capacity for the LRC increased the number of locomotives that can be repaired in a single day from 15 in 2007 to 25 in 2011. CP states that after the consolidation, another shift was added to allow the LRC to operate 24 hour a day, seven days a week.

In response to concerns expressed by the community, CP has taken measures intended to mitigate the noise and vibration impact of its repair activities. CP moved its outbound load testing behind the LRC, with the intent that the LRC act as a sound barrier. CP also changed its locomotive maintenance assignments in order to move the older Gen 1 locomotives out of Alyth Yard and replaced them with the newer Gen 2 locomotives, which according to CP have a quieter process.

CP has also taken other measures that may have the effect of mitigating the noise and vibration impact on the complainants. CP has used the “Expert on Alert” technology, as a pilot project. Without this technology, the number of inbound load tests performed at the Alyth Yard would be significantly higher as, according to CP, the technology reduces number of inbound load tests performed by 70 to 80 percent. CP has also performed occasional inbound load testing on tracks N-18 and N-19 situated next to the bird sanctuary, which is approximately 1.5 miles away from the residences of the complainants. These measures, however, only resulted in a reduction of the number of load tests performed in close proximity to the LRC, and they have had no impact on the noise and vibration level of those inbound tests that continue to be performed close to the LRC. Also, CP has not filed any information indicating CP’s firm commitment to the continued use of the “Expert on Alert” technology. Despite these measures, the noise and vibration continue to be an issue for the complainants.

The Agency finds that the evidence on file does not show a clear distinction in the manner in which the repair operations at the Alyth Yard LRC have changed since repair activity consolidation of 2009. The noise mitigation measures implemented by CP which include the use of the “smart start” technology pre-dates consolidation. Inbound and outbound load tests continue to be performed outdoors and locomotives continue to be left idling on the LRC’s tracks until they are reassigned. However, there is no evidence indicating that the duration of the load test or the idling time has increased or decreased and there is no evidence demonstrating that locomotive engines are louder than they were prior to 2009.

For this reason, the Agency finds that any unreasonable noise  there may be, can only be a result of the increase in load testing (inbound and outbound), idling locomotives, and the scheduling of load testing and idling operations, caused as a result of the 2009 consolidation.

In Decision No. 35-R-2012, the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligations. Making a parallel with jurisprudence of courts of civil jurisdiction on nuisance law, the Agency determined that the first step consists of determining whether there is noise and/or vibration which constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference). In the affirmative, the Agency must then balance the noise and/or vibration against the criteria set out in section 95.1 of the CTA to determine whether, in that context, the noise and/or vibration is reasonable. Corrective measures may only be ordered if the Agency concludes after this balancing exercise that noise and/or vibration is not reasonable. In examining whether substantial interference was caused in that case, the Agency considered the nature, the duration and frequency of the noise/vibration. In that Decision, the Agency also recognized that noise and vibration during the night can cause a higher degree of disturbance to persons than during the day.

In the present case, the evidence on record indicates that, as a result of the consolidation, CP has significantly increased the number of locomotives assigned to the Yard for scheduled maintenance from 2007 to 2012. From 2007 to 2009, 191 to 227 locomotives were assigned to the Yard annually. From 2009 to 2012, the number of locomotives assigned to the Yard grew to 442, not including those locomotives that were not specifically assigned to the Yard for regular maintenance but have required repair work while in the area of the Alyth Yard LRC. The evidence shows that from 2009 to 2012, CP has more than doubled the number of idling locomotives and load testing actions in a 24 hour period.

In the meeting minutes of March 19 and 20, 2012, CP stated that there can be up to 25 load tests per day, and, depending on the demand, half of the load testing can occur at night. This approximates one load test per hour through the night. Furthermore, the meeting minutes indicate that locomotive idling is routinely 24 hours a day, every day. CP states that at any given time the total number of idling locomotives could exceed 30 while waiting for repair or assignment.

The evidence shows that the volume and frequency of the load testing and idling activities are substantial and that the scheduling of the tests is irregular and based solely on operational needs. Load testing and idling can occur at any time, and whether it is day or night is not a factor considered in the scheduling of the load tests or the idling of the locomotives.

The Methodology, which was referenced in CP’s submission, was prepared and developed by the Agency in consultation with key industry players, including representatives of CP, to guide railway companies, citizens or municipalities in determining noise level for the purpose of Agency proceedings. In order to assess the impact of the locomotive activities, when no specific noise data is available, the Agency finds it appropriate that the Methodology be used to estimate potential noise levels at the residences.

In the Methodology, a set of simple basic principles has been developed to be used when estimating noise levels. In the section on Idling Locomotive Noise of the Methodology, Appendix A outlines some basic factors to consider as part of a simplified analysis to estimate noise levels. Some of the basic factors include the addition of noise due to multiple sources, the locomotive sound level and its reduction over distance and adjustment factors for time and obstacles. In addition, Table 2 on page 5 was followed for decibel addition. A description of these basic factors and how they were used by the Agency in estimating the noise level is outlined below.

In its submissions, CP stated that it performs load testing in accordance with industry standards and that rail operations are consistent with established industry operating standards or parameters. In CP’s September 19, 2011 pleadings, Exhibit 10 referred to the United States Code of Federal Regulations (CFR): CFR Title 40 – Protection of Environment, Part 201.11 Noise Emission Standards for Transportation Equipment, for locomotive operation under stationary conditions. The CFR is the codification of the general and permanent rules and regulations for the government of the United States. The standard established in the CFR indicates that the maximum sound pressure level for locomotives manufactured after December 31, 1979, should not exceed 87 dBA at any throttle setting except idle when connected to a load cell or 70 dBA at idle. Both sound levels are based on a receiver location 30 metres (100 feet) away.

Assuming that CP’s engines operate within the CFR standard, sound from the revving of locomotives at full throttle while serviced at the Alyth Yard LRC could be up to the maximum decibel level of 87 dBA at 30 metres. In addition, each idling locomotive while waiting in the queue could be up to 70 dBA at 30 metres. When taking into consideration the adjustment factors for multiple locomotives and Table 2 of the Methodology, the sound levels due to idling locomotives could increase from 70 dBA to 85 dBA at 30 metres. When combining the two locomotive activities (one locomotive load testing at 87 dBA and multiple locomotives idling at 85 dBA) using Table 2 of the Methodology, the total combined sound level is estimated to be 89 dBA at 30 metres.

With respect to the reduction of noise over distance, although both parties have accepted that the closest residence is within 60 metres of the Yard, the Agency notes that from the meeting minutes of March 19 and 20, 2012 that the activities associated with the LRC are not restricted to one particular location; rather, the LRC activities occur in and around the general vicinity of the LRC building. Upon review of CP’s September 19, 2011 submission, Exhibit 2, and the aerial photograph provided by CP as part of the meeting minutes from March 19 and 20, 2012, the approximate geometric centre of LRC activities is assumed to be at the centre of the LRC building. The centre of the LRC building to the closest residence is measured to be less than 200 metres. Because the CFR standard establishes maximum sound pressure levels at 30 metres, a noise reduction factor over distance to be applied would be from 30 to 200 metres.

According to the Baseline Sound Levels for the Single Idling Locomotive Table in Appendix A of the Methodology, the reduction of noise from 30 metres to 200 metres is estimated to be 21 dBA. In order to estimate the sound levels at 200 metres, the same noise reduction can be applied to the estimated combined sound level above. Therefore, the combined sound level of 89 dBA at 30 metres is predicted to reduce to 68 dBA at 200 metres. This estimated sound level does not include any special character adjustments, as noted in the Methodology, to account for any potential low frequency effects or building resonances at the residences which may result in greater annoyance. Character adjustments, where appropriate and as indicated in the Methodology, may be added to the total sound level to account for greater annoyance of a unique sound.

As these load tests last from 20 to 60 minutes, locomotive engine noise from load testing can at times be ongoing for substantial portions of the night. Therefore, no adjustment factor for time was applied. In addition, an adjustment for obstacles was not included because it is noted by the complainants that the LRC building does not consistently provide physical shielding.

CP states that the background sound levels in the Inglewood area fall somewhere between an “urban residential” and a “noisy urban residential” neighbourhood. According to the Agency’s Methodology, these areas have estimated baseline sound levels between 60 to 65 dBA during the day and 50 to 55 dBA during the night.

If the background sound levels as referenced by CP from the Agency’s Methodology are estimated to be between 50 to 55 dBA during the night, and the contribution of the locomotive activities, predominantly being the idling and load testing, could be up to 68 dBA, the difference in sound levels could be as high as 18 dBA.

The Agency notes that the Proximity Guidelines submitted by the complainants, which CP has participated in developing, state that for significant expansions to existing rail facilities in proximity to residential land uses, mitigation should be considered when predicted sound levels exceed the ambient by 5 dBA or more. In the Agency’s view, this recommendation in many situations is indicative that sound level above the baseline level in excess of 5 dBA may result in impacts for residents. By necessary implication, the more the sound level exceeds that threshold, the greater the impact on the residents. Therefore, the Agency considers that noise levels substantially above the ambient noise may increase annoyance and impact sleep and communications, which may have negative effects on health outlined in the Agency’s Methodology. In addition, the Agency considers that noise during the night when background sound levels are at their lowest (and when people are generally more sensitive to noise) is less acceptable than noise occurring during the daytime. This conclusion is consistent with Decision No. 220-R-2012, Marysville CN Expansion Community Group vs. the Canadian National Railway Company, and Decision No. 35‑R‑2012, André Normandeau and Tammy Tymchuk vs. CP, where the Agency recognized, as a principle, that noise at night can be more disturbing than noise during the day.

The complainants state that they had no issue with noise and vibration from Alyth Yard prior to the consolidation but that due to the LRC consolidation they are deprived of sleep as a result of being awoken night after night, experience headaches from constant noise and vibration, suffer from anxiety and panic attacks and that they have lost the enjoyment of their homes.

CP has argued that “there would be an obligation on the part of the residents to take measures to mitigate the noise, which the complainants have failed to do.”  While the Agency might consider this a factor in cases where the noise could be effectively mitigated by the residents, no such duty is imposed in the CTA. At the same time, the railway company has an ongoing positive duty under section 95.1 of the CTA to cause only such noise and vibration as is reasonable taking into account its level of service requirements, its operational requirements and the area where the construction or operation takes place. The reversal of the obligation argued by CP would have the effect of nullifying the remedy that Parliament created.

In light of the foregoing, the Agency concludes that the evidence on file indicates that the complainants may be subject to locomotive engine noise at high decibel levels, that such noise is frequent and of long duration. Also, approximately 50 percent of the noise is caused during the night, a period where people are more sensitive to the noise. The Agency concludes that the cumulative effect of the noise caused by the increased load testing and idling operations resulting from CP’s consolidation of its repair activities in 2009 may constitute substantial interference in the ordinary comfort and convenience of living of the complainants even with the measures already taken by CP to mitigate the noise at the Alyth Yard LRC.

Further, according to CP’s submissions and evidence, CP’s decision to consolidate its repair activities, causing the number of repair operations to increase, appears to have been based on safety and efficiency considerations only. No evidence was filed to indicate that, before implementing its decision to create a major repair facility at Alyth Yard and increase the volume of its repair operations, CP gave any consideration to the impact this would have on the community. In light of this, the Agency concludes that when balanced against criteria set out in section 95.1 of the CTA and when considering the local area, the increased noise caused by the load testing and idling activities at the Alyth Yard LRC since the consolidation in 2009 may be unreasonable.

Direction to show cause

Before making a final decision on the complaint, the Agency directs  CP to show cause why the Agency should not conclude that the cumulative effect of the noise caused by the increased load testing and idling operations resulting from CP’s repair activities constitutes substantial interference in the the ordinary comfort or convenience of living of an average person, and that when balanced against the criteria set out in section 95.1 of the CTA, the increased noise caused by the load testing and idling activities at the Alyth Yard LRC since 2009 is unreasonable. Unless data showing actual noise levels is submitted by CP, the Agency may use the noise level estimates set out in this show cause in making its final decision on the complaint.

CP is also directed to show cause as to the reasons why the Agency should not require CP to implement corrective measures at the source or mitigation to prevent propagation of the noise to the parties affected, including, but without limitation,  measures restricting volume of operations, location of operations, operating hours, operating procedures, and noise barriers.

CP is required to respond to the above-noted direction by November 5, 2012. The Agency provides the complainants until November 15, 2012, to submit any final comments on CP’s submission. The Agency will then assess the information and make its final decision on this matter pursuant to section 95.3 of the CTA.

Should you have any questions relating to this case, you may contact Stephan Coqueux, by telephone at 819-997-7702, by facsimile at 819-953-5564, or by e-mail at stephan.coqueux@otc-cta.gc.ca.