Agency Rulings

Decision No. 701-R-2000

November 6, 2000

APPLICATION by Alberta Infrastructure pursuant to section 101 of the Canada Transportation Act, S.C., 1996, c. 10, for authority to reconstruct the grade separation at Highway 43 and mileage 67.77 of the Sangudo Subdivision of the Canadian National Railway Company, near the hamlet of Rochfort Bridge, in the province of Alberta.

File No. R 8050/649-067.77

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APPLICATION

On June 19, 2000, Alberta Infrastructure (hereinafter AI) applied to the Canadian Transportation Agency (hereinafter the Agency) for authority to reconstruct the subway at the above-noted location, as the parties have been unable to agree on the apportionment of the construction costs.

With its application, AI enclosed copies of the Canadian National Railway Company's (hereinafter CN) undated Preliminary General Layout Drawing No. AA531-67.77-3.1 and three sets of AI's prints of Design Data Drawings DD 1571, 1571 A and 1571 B all dated December 2, 1999.

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 until November 6, 2000.

BACKGROUND

By Order No. 87046 dated September 29, 1955, the Board of Transport Commissioners for Canada authorized the Province of Alberta to construct the subway at mileage 67.88 of the Sangudo Subdivision to accommodate the traffic on Highway 43. This Order required the railway company to contribute $12,000 towards the construction costs of the subway with the balance after funding to be paid by the road authority.

As part of the initial subway crossing construction project, an at-grade crossing located in NW 11-58-9-5, (now mileage 79.52 of the Sangudo Subdivision) that was authorized by the Board of Railway Commissioners for Canada Order No. 32015, dated January 16, 1922, was closed to main highway traffic (remaining open to local traffic) in 1955.

The existing subway, which was constructed in 1955/56, forms part of the north end of the CN trestle, which spans the Paddle River Valley, near Rochfort Bridge, approximately 125 km northwest of Edmonton. The CN trestle is 850 m long and 30 m high and carries the single railway track across the two lanes and paved shoulders of Highway 43 and the Paddle River.

AI is proposing to twin Highway 43 through the Rochfort Bridge area, with construction commencing in 2001. The highway is one of the main routes to the northwest portion of the province, as well as being a direct connection to the MacKenzie Highway and the northwest highway system. The proposal includes reconstructing the existing railway subway that is part of the CN trestle to accommodate a four-lane divided facility and includes replacement of an approximately 30 m section of the existing wooden trestle with a new deck plate girder superstructure. The proposed reconstruction under the CN trestle will occur on the south side of the existing subway to minimize the disruption to the local community, and the existing underpass structure will not be affected by the proposed reconstruction. The new two-lane roadway will be at approximately the same elevation as the existing two-lane roadway through the trestle area, and has been designed to accommodate the existing single railway track.

Infrastructure Systems Ltd. was hired by AI to undertake the preliminary engineering design for the proposed underpass. CN is undertaking the detailed design of the underpass structure, and will conduct the contract administration and construction supervision of the reconstruction.

AI has advised that the vertical clearance over the highway (i.e. the profile of the road) will increase from the standard minimum of 5.4 m to 5.7 m in order to accommodate a future ballast deck. AI has also advised that there are no special requirements for utilities or surface drainage as a result of this reconstruction although a retaining wall system is required to divert fill away from the timber bents.

Highway 43 is a major north/south highway, with a 1999 average two-way annual daily traffic count of 4,800 vehicles at the subway location. Based on a traffic growth trend of 2.06 percent, AI estimates that the traffic count will increase to 6,800 vehicles per day in 20 years.

At present, the railway traffic consists of an average of two freight trains per day, and this traffic is not expected to substantially increase.

The total cost of the project is estimated at $1,690,000, which includes $95,000 for the median span and $120,000 for engineering and design.

ISSUES

In its original application, AI indicates that the parties were unable to reach an agreement on the reconstruction of the median span and on the apportionment of the costs for the reconstruction of the grade separation. Therefore, AI requests that the Agency rule on these two issues.

POSITIONS OF THE PARTIES

AI submits that CN's requirement to replace the trestle median span with a steel span is to reduce future maintenance costs. As this, in AI's view, is not required for the reconstruction of the subway, AI submits that CN should pay the entire cost of reconstructing the median span.

AI points out that CN had originally agreed to contribute $120,000 towards the reconstruction of the underpass, which amount represents CN's direct costs to undertake the detailed design of the structure.

With respect to the apportionment of the costs for the reconstruction of the grade separation, AI submits that a 25 percent contribution from CN towards the reconstruction cost is reasonable and equitable as the railway has contributed to the problems on the road allowance, and as the roadway is senior to the railway.

AI also submits that the costs of maintaining the substructure and superstructure of the subway, including the cost of maintaining the track structure, retaining wall and railway drainage, should be paid by CN. AI has agreed to pay the costs of maintaining the highway approaches, the highway surface and the drainage and lighting facilities.

In support of its position, AI argues that:

- the construction of the original grade separation which was authorized by Order No. 87046 dated September 29,1955 required that CN contribute $12,000 with the balance, after funding, to be paid by the Province of Alberta. AI argues that this requirement establishes a responsibility on CN at the grade separation. The Order also required CN to pay the costs of maintaining the bridge structure.

- the Province of Alberta is senior as there was agreement on the transfer of seniority from the at-grade crossing at mileage 79.52 to the subway at the subject location when, as part of the subway construction, the at-grade crossing was closed to highway traffic in 1955. AI submits that this status is further confirmed by the fact that CN has responsibility at the existing subway by virtue of CN's contribution.

- as both parties have increased their facilities at this location since 1955, the 25 and 75 percent railway/road authority cost apportionment proposed by the Province of Alberta in 1954 is still reasonable and equitable. The minimum 15 percent contribution by the railway company would only apply if the railway company had not increased its facility at the crossing.

- AI gains no direct benefits from the reconstruction of the grade separation. In fact, this proposal is a liability to AI as it had the freedom to upgrade its facility, as required, prior to the construction of the railway track and as the presence of the railway track restricts AI's freedom to expand its facility without incurring additional costs.

- both parties have a responsibility at the railway crossing to ensure safety to the travelling public. The proposed reconstruction will continue to provide safety and convenience to the public by eliminating all vehicle/train conflicts and delays at this railway crossing.

- the reconstruction of the grade separation is not the result of a new route.

With respect to the subway structure, CN submits that, the median span is required for safety purposes and, as such, it should form part of the basic grade separation and should not be considered as an additional facility to be paid 100 percent by the railway company.

In its letter dated March 17, 2000, CN states that the addition of the median span will prevent the deterioration due to the two additional impacts that would be introduced if the grade separation were reconstructed without it. CN maintains that it is already experiencing problems with the current variation in the stiffness of the riding surface due to the transition from softer structure sections to a stiffer structure section, which increases car vibration. CN adds that to reconstruct this subway without the median span would create additional deterioration to the structure and could lead to a higher risk of derailment.

CN submits that its original proposed contribution of $120,000 was conditional upon an agreement between the parties respecting details of the project. Following AI's application to the Agency, CN advises that it has withdrawn this offer and submits that as this figure was raised during negotiations outside of the CTA process, it should not be considered by the Agency.

In addition, CN submits that its contribution towards the costs and future maintenance should be zero, and, in support of this position, CN argues that:

- the proposed twinning constitutes a new route and as such, should be paid in full by the Road Authority in accordance with the Agency's Guidelines on Apportionment of Costs of Grade Separations (hereinafter the Guidelines).

- the project is not justified on the grounds of safety, but is promoted on the Applicant's part to substantiate an ultimate road plan. This is borne out by the extremely low traffic cross product, both current and projected.

- the Province of Alberta will be the sole benefactor of the proposed grade separation, which is proposed to be built primarily as a convenience for the travelling motorists.

- CN will derive no benefit from the construction of the grade separation as the railway traffic volume has remained constant for years. CN foresees no expansion of the railway traffic in the future, and is fully content with the status quo.

- the Road Authority is the junior party at the proposed location, as the at-grade crossing at mileage 79.52 was never closed to main highway traffic or the seniority transferred to the subway location. In fact, CN has been required to contribute to at least two upgrades at the at-grade crossing, as well as contributing to, and maintaining, the existing grade separation.

- the requirement for an additional contribution for an unnecessary second grade separation would only perpetuate an existing unfair situation.

- with respect to seniority, CN submits that it owns the entire lands under the Rochfort Bridge.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence and arguments submitted by the parties.

Pursuant to subsection 18(1) of the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (hereinafter the CEAA), the project has been screened and a screening report has been prepared. The Agency is of the opinion that public participation in the screening of the project under subsection 18(3) of the CEAA is not required in the circumstances. After taking into the consideration the screening report, the Agency determines that the project is not likely to cause significant adverse environmental effects, taking into account the implementation of the proposed mitigative measures. The applicant is required to submit to the Agency an 'as built' report within 90 days from the completion of the construction.

Pursuant to section 101 of the CTA, if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining a road crossing and if the matter is referred to the Agency, the Agency shall determine the proportion of the liability for the construction and maintenance costs to be borne by each party.

The Agency notes that by deferring to CN's detail design, AI does recognize the railway company's expertise in assessing load impacts on the structure and that the best way to mitigate the additional impacts is to add a median span. AI does not object to the reconstruction of the median span, however, the parties disagree on the apportionment of its costs. Therefore, in this particular case, the issue requiring a determination by the Agency is the apportionment of the costs of the grade separation.

With respect to grade separations, every case is assessed on its own merits to determine whether the Agency's Guidelines apply and the Agency may issue decisions that vary from the Guidelines depending on the circumstances surrounding each particular grade separation project.

The Agency notes that Order No. 87046 required CN to pay the costs of maintaining the bridge structure, in addition to a contribution of $12,000 towards the cost of construction of the subway, which, in the opinion of the Agency, established CN's responsibility at this grade separation.

The Agency also notes the arguments made by the parties with respect to the issue of seniority.

The Agency is of the view that the median span constitutes an adequate facility required at the time of reconstruction and hence should form part of the basic grade separation. Therefore, the Agency finds that all of the work described in the cost estimate provided in the application, which includes the median span, constitutes the basic grade separation.

The Agency notes that the use of a new steel span and median span will require less maintenance and will benefit CN by replacing a portion of the existing wooden trestle. Therefore, the Agency finds that a CN contribution towards the reconstruction costs of the basic grade separation, which also includes the median span, is required in order to reflect the benefits received by CN from this proposal.

As the proposed addition of a median and two lanes represents an increase in the capacity of an existing route and an upgrade to its standards, the Agency is therefore of the opinion that the twinning of Highway 43 does not constitute a new route.

After consideration of the positions expressed by the parties on the cost apportionment issue, the Agency determines that the Guidelines apply in this case, specifically clause 3b). This provision states in part that:

        For a basic grade separation that:

        b)    reconstructs an existing grade separation where both parties have responsibility or where the reconstruction is for the purposes of the party having no responsibility;

        the costs of construction are normally to be apportioned as follows:

        i)     on projects due primarily to highway development

                85 percent Highway Authority
                15 percent Railway Company;...

Given that this project is due to highway development, the Agency determines, in accordance with the Guidelines, that CN should pay 15 percent of the reconstruction costs of the basic grade separation. The Agency considers that this cost apportionment is fair and reasonable as it reflects the benefits received by each of the parties.

With respect to the maintenance costs of the subway, the Agency is of the opinion that Clause 3 of the Guidelines also applies, which provides that all costs of maintenance of the substructure and the superstructure of a subway are to be paid by the railway company (in this case CN); and that all other costs of maintenance of a subway, including the cost of maintaining the highway approaches, retaining walls, highway surface, sidewalks, drainage and lighting are to be paid by the road authority (in this case AI).

It is noted that CN is currently maintaining the existing subway structure, which is consistent with the apportionment of maintenance costs prescribed in the Guidelines. Accordingly, the Agency determines that the maintenance costs should continue to be apportioned as set out above.

CONCLUSION

The Agency, pursuant to subsection 101 of the CTA, authorizes the reconstruction of the subway.

CN shall pay 15 percent of the reconstruction costs of the basic grade separation, and the balance of the costs shall be paid by AI.

The maintenance costs of the grade separation shall be apportioned as set out above.