Agency Rulings

Decision No. 236-R-1999

With Order No. 1999-R-224

May 13, 1999

IN THE MATTER OF a complaint filed by Jean-Charles Dextras pursuant to section 95 of the Canada Transportation Act, S.C., 1996, c.10, concerning the noise, vibrations and pollution emanating from the passing of diesel locomotives of the St. Lawrence & Hudson Railway Company Limited between mileage 0.00 (Ste-Thérèse) and near mileage 6.5 (limits of Blainville) of the Ste-Agathe Subdivision, in the province of Quebec.

File No. R 8030-1

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COMPLAINT

By letter dated June 6, 1998, Jean-Charles Dextras filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) regarding the noise emanating from the passing of diesel locomotives of the St. Lawrence & Hudson Railway Company Limited (hereinafter SL&H) between mileage 0.00 (Ste-Thérèse) and near mileage 6.5 (limits of Blainville) of the Ste-Agathe Subdivision, in the province of Quebec.

Mr. Dextras also filed a copy of a petition signed by approximately 180 residents who state that they are dissatisfied with the railway operations in this location, and in particular with the noise, vibrations and pollution caused by the trains. The petition indicates that the complainants would consider the operation of this rail service acceptable if the railway line were improved by the installation of welded rails and if the locomotives were replaced by more recent models, similar to those used for the Deux-Montagnes train service. However, they are opposed to the rail service if nothing is done to remedy the situation.

On September 14, 1998, SL&H filed a reply to Mr. Dextras' complaint.

A study of noise levels performed by Ergo-Acoustique on October 29, 1998 was filed by Mr. Dextras on November 12, 1998.

On December 16, 1998, the Agency submitted a copy of the results of the Ergo-Acoustique study to SL&H and to Ville de Blainville (hereinafter the City) and requested their comments on the sound levels obtained. The City submitted its comments on March 23, 1999 while none were provided by SL&H. However, SL&H and the Agence métropolitaine de transport (hereinafter the AMT) submitted comments on the complaint. The City indicated that its by-laws do not apply to railway transportation which falls within the jurisdiction of the federal government.

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.

ISSUE

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

FACTS

The AMT was created on January 1, 1996 by the Government of Quebec to support, develop, coordinate and promote public transit, including suburban trains. In August 1997, the City, SL&H and the AMT agreed to establish a pilot suburban train service between Blainville and Montréal. SL&H was to operate the service on behalf of the AMT for nine months. On August 17, 1998, the AMT decided to extend this transportation service by two years to August 15, 2000 and to increase the frequency to 24 trains a day, 12 in each direction. In order to ensure that the service is provided, six empty trains also pass each day, bringing the frequency to a total of 30 trains a day.

A newspaper clipping submitted with the file indicates that, as a result of an investment of $4.86-million by the ministère des Transports of the province of Quebec (hereinafter the ministère), train service on this line was to be extended beyond August 15, 2000, and perhaps indefinitely.

Municipal by-laws establish average noise levels of 55 dBA during the day and 50 dBA at night, and at any time, no noise should reach or exceed a maximum level of 75 dBA. The study undertaken by Ergo-Acoustique indicates that, between 9:00 p.m. and 7:00 a.m., four train movements produce average noise levels of 62 dBA, or 12 dBA above the level prescribed by the by-laws. In addition, the daily movements produce an average noise level of 68 dBA and a maximum level of 93 dBA while the train is passing, or 13 dBA and 18 dBA above the levels prescribed by the municipal by-law.

The World Health Organization has established that average noise levels inside a home should never exceed 30 dBA between 9:00 p.m. and 7:00 a.m. and that the maximum level should never exceed 45 dBA at any time. The average noise level at night inside Mr. Dextras' home, however, was 44 dBA and the maximum noise level 77 dBA while a train was passing, or 14 and 32 dBA above the levels established by the World Health Organization.

The description of the VIA Rail Canada Inc. F-40 locomotives used by SL&H indicates that new locomotives, when stationary, produce a maximum noise level of 87 to 90 dBA within a 100 foot radius.

POSITIONS OF THE PARTIES

Mr. Dextras indicates that, before he purchased his home around 1980, a representative from the Canadian Pacific Railway Company had advised him that rail operations on this track would be discontinued as the line was no longer in use, and that representatives at the town hall had indicated that the railway was to be converted into a bicycle trail. Mr. Dextras states that, in August 1997, however, the suburban train service was introduced.

Mr. Dextras submits that the trains used are, on average, 35 years old and that the track is in poor condition, resulting in a deterioration in quality of life due to the noise, vibrations and pollution produced by passing trains. Mr. Dextras submits that excessive speed on a century-old railway line represents a threat to safety, that the trains exceed the prescribed noise levels and that the vibrations could damage the foundations of houses. In addition, Mr. Dextras submits that diesel pollution from the trains threatens the health of residents in the area.

Mr. Dextras recommends that the locomotives be replaced with more recent models, that the track be upgraded with welded rails and that the speed of the trains be reduced to minimize the vibrations caused at each rail joint.

SL&H indicates that railway operations on the line are no different in their nature from those occurring elsewhere, that the track is adequate for the weight and volume of rail traffic and that maintenance work was done in the summer of 1998. SL&H adds that, at that time, ties were replaced and track levelling was carried out to ensure that it was able to accommodate present levels of traffic.

SL&H states that it has submitted an estimate to the AMT for the installation of welded rails as, under the terms of the rail services agreement, the AMT is responsible for any costs of upgrading the track to accommodate any increase in traffic caused by the suburban trains. SL&H notes that welded rails would reduce the noise caused by train wheels passing over joints in the rails. In addition, SL&H indicates that the locomotives do not exceed acceptable noise levels when they are new but that, with age, their ability to absorb sound declines as a result of the loss of insulation inside the engine room. SL&H adds that the AMT proposes to purchase new locomotives over the next three years.

Nonetheless, SL&H maintains that the noise and vibration levels are within reasonable limits and are an inevitable consequence of railway operations. SL&H submits that the increase in traffic over the last two years does not mean that the trains are louder or that they are heavier, but simply that they are more frequent. SL&H indicates that the level of traffic has fluctuated considerably over the years with the demand for rail transport and that this is a risk that must be accepted by anyone buying property in the vicinity of a railway line.

SL&H points out that, while operation of the north segment of the Ste-Agathe Subdivision between St-Jérôme and Ste-Agathe was abandoned on July 4, 1990, no application was ever submitted under the Railway Act, R.S.C. 1985, c. R-3 to abandon the segment between Ste-Thérèse and St-Jérôme.

The AMT notes that the success of this pilot project is dependent on ridership levels and on the cost of the service, and to minimize these costs, the AMT refurbished 20 used cars acquired by the ministère in 1994 and leased 3 F-40 locomotives from VIA Rail Canada Inc. in addition to the stock currently in use on the line, which consists of: forty 800 cars built in 1952, nine 900 cars built in 1967, twenty-four 700 cars built in 1988, seven F-7 locomotives from 1952, four GC-418 locomotives built during the period 1953-1958, and seven APU cars rebuilt in 1988. The AMT notes that it is in the process of issuing a tender call for new or rebuilt locomotives to replace the F-7 units used on the Vaudreuil/Rigaud line, but replacement of the locomotives or railway infrastructure on the Blainville line was not under consideration in view of the duration of the pilot project.

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 reads as follows:

(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 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 else necessary for the construction or operation of the railway.

Subsection 95(2) reads as follows:

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

Section 37 states that:

The Agency may inquire into, hear and determine a complaint concerning any 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 Mr. Dextras' submission that excessive speed on a century-old railway represents a threat to safety. The Agency has no authority on these matters which fall under the jurisdiction of Transport Canada.

The Agency notes that the maximum noise level produced by new F-40 locomotives within a radius of 100 feet varies between 87 and 90 dBA. It has been noted that new locomotives comply with these standards but that as they age their sound absorbing properties diminish as a result of the deterioration of the insulating materials inside the engine room. As the noise levels recorded by Ergo-Acoustique, which SL&H did not dispute, indicate a maximum level of 93 dBA, the noise from the locomotives used exceeds the maximum level produced by a new locomotive of the same model by only 3 dBA. Therefore, the Agency concludes that new locomotives would probably not solve the problems of the property owners along the railway line, as the houses are located so close to the railway that any type of diesel locomotive would be noisy and would fail to comply with the municipal guidelines or those established by the World Health Organization.

The Agency is of the opinion that a municipality takes a risk when deciding to allow residential development along a railway right of way that has not been legally abandoned. The Agency notes that the City authorized residential construction along the railway when rail traffic was virtually nil and subsequently took part in a pilot project in order to increase passing suburban trains to 30 a day. The Agency is of the opinion that the City played an active role in creating this situation. The Agency also notes that, in its letter dated March 15, 1999, the City does not specifically address the issue but only indicates that a municipal by-law should not take precedence over a matter subject to federal jurisdiction.

While almost no rail operations took place on the line in previous years, SL&H now operates a suburban train service between Blainville and Montréal on behalf of the AMT. Therefore, the Agency finds that there has been a significant change in the facts and circumstances relating to rail operations at this location. For instance, the suburban train service now operates at a higher speed and greater frequency, using old locomotives. The Agency is of the opinion that the suburban train service is a new service and that the impact of any new service on neighbouring property owners must be taken into consideration. In this respect, the Agency notes that SL&H and the AMT did not refute Mr. Dextras' allegation regarding the impact of the new service.

The Agency notes that the locomotives used by SL&H were built in the 1950s at which time the pollutant emission requirements were not the same as they are today. The Agency is of the opinion that the replacement of the insulation inside the engine rooms of the locomotives, modifications to the locomotives to reduce pollution, and replacement of the existing rails by welded rails at the locations concerned could reduce noise, vibration and pollution problems in the area. In this regard, SL&H advised that the replacement of the existing rails with welded rails would reduce the noise caused by the train wheels as they roll over the rail joints.

SL&H, pursuant to subsection 95(1) of the CTA, may exercise certain powers for the purpose of operating its railway. Although the Agency recognizes that it is inevitable that noise, vibrations and pollution will be produced in the course of a railway company's operations, subsection 95(2) places a limitation on the exercise of its powers. The Agency finds that noise, vibrations and pollution can cause damage and that all actions have not been taken to improve the situation by reducing noise, vibration and pollution levels.

CONCLUSION

Based on the above findings, the Agency has determined that SL&H has not done as little damage as possible in the exercise of its powers. Accordingly, the Agency will require SL&H to undertake certain actions.

An order to that effect will be issued.