Decision No. 125-R-1998

March 27, 1998

March 27, 1998

IN THE MATTER OF a complaint by Mr. Pierre Vézina on behalf of the Association des co-propriétaires du 815 Muir, Château de Casson (Phase III), pursuant to section 230 of the Railway Act, R.S.C., 1985, c. R-3, concerning the noise caused by the passage of trains at the East Junction railway crossing, Deux-Montagnes and Saint-Laurent Subdivisions of the Canadian National Railway Company, in the vicinity of the Château de Casson (Phase III), Saint-Laurent, Quebec.

File No. R 8030/S1


BACKGROUND

The complaint was filed on May 28, 1996 with the National Transportation Agency (hereinafter the NTA). On July 3, 1996, the City of Saint-Laurent requested that the Canadian Transportation Agency (hereinafter the Agency) conduct an investigation to determine solutions to be adopted to reduce the nuisance caused by the emission of noise from the passage of trains, verify the quality of the reconstruction of the railway crossing and order the completion of any work required at the expense of the Canadian National Railway Company (hereinafter CN). The Board of Directors of the Association des co-propriétaires du 815 rue Muir has approved the measures taken by Mr. Pierre Vézina, one of the co-owners of the association, as well as those of Ville de Saint-Laurent and corroborates each and all representations submitted on their behalf by the latter. Consequently, the City of Saint-Laurent became an intervener in this matter pursuant to section 47 of the National Transportation Agency General Rules, SOR/88-23.

Section 230 of the Railway Act provides:

(1) The Commission may make orders and regulations generally providing for the accommodation and comfort of the public in the running and operating of trains.

(2) Any orders or regulations under this section may be made applicable during or after the construction of the railway, or during such time and in such manner as the Commission deems proper.

The Canadian Transport Commission was superseded by the NTA with the passage of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.). The NTA was then superseded by the Agency on July 1, 1996, with the passage of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA).

The complaint in question was filed with the NTA. On July 1, 1996, the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA) came into effect which, inter alia, repealed section 230 of the Railway Act. Pursuant to section 195 of the CTA and to the Discontinuance and Continuance of Proceedings Order, 1996, SOR/96-383, proceedings relating to certain matters before the NTA, prior to the coming into effect of section 195, shall be dealt with by the Canadian Transportation Agency, pursuant to the provisions of the Railway Act. This proceeding is included in the Order as a matter to be dealt with pursuant to the provisions of the Railway Act.

The Château de Casson (Phase III) condominium building, the building permit for which was issued on November 10, 1989, is situated in the City of Saint-Laurent some 120 metres from the CN railway crossing, which has been in existence between its Saint-Laurent and Deux-Montagnes Subdivisions since 1979. The residents complain of the noise caused by trains, in particular the pounding noise caused by the passage of the wheels over the components of the railway. There is a gap of approximately 50 mm in the rail at the rail frog. When the wheels of the railway trains cross this gap, they hit the extension of the rail causing noise on impact.

The matter has been under discussion between the residents of the Château de Casson, the City of Saint-Laurent and the CN authorities since 1993 with a view to identifying and resolving the problem. Throughout these proceedings several exchanges of correspondence took place, and a working meeting was held between the Agency, the City of Saint-Laurent, the Association des co-propriétaires of the Château de Casson and CN. Solutions were proposed, but the issue still remains unresolved. In the circumstances, the Agency must investigate and make a determination as to whether the facts of this complaint justify making an order pursuant to subsection 230(1) of the Railway Act providing for the accommodation and comfort of the public in the running and operating of trains.

CITY OF SAINT-LAURENT POSITION ON BEHALF OF THE RESIDENTS OF THE CHÂTEAU DE CASSON

The City of Saint-Laurent provided a study carried out in November 1996 by Décibel Consultants Inc. (hereinafter Décibel) on the noise nuisance caused by railway traffic near the building. Noise surveys were carried out over consecutive 24-hour periods in accordance with the criteria of the Canada Mortgage and Housing Corporation (hereinafter CMHC). The resulting measurements showed that, due to the passage of trains, the sound environment at the Château de Casson (Phase III) was considered unacceptable as, on average, it exceeded the standard by nearly 9 dBA (decibel or energy equivalent noise level - Leq).

One of the main causes of these excess levels was specifically identified as trains passing over the railway crossing, causing a much higher noise level than a track without a crossing. The railway crossing significantly increases the noise level by between 9 and 15 dBA depending on whether the train is a freight or commuter train respectively.

The City of Saint-Laurent is convinced that the onus is on CN to implement a solution because the noise results from its activities at a crossing which CN owns and from which it accrues benefits. The City is also of the view that the costs associated with implementing any solution are entirely the responsibility of CN.

The City of Saint-Laurent proposed several solutions, but submits that the safest and most effective solution is to build a grade separation.

The City of Saint-Laurent is of the view that a new, state-of-the-art railway crossing would help to reduce the noise because maintenance work has to be performed frequently and the trains are heavier and run at a greater speed with increased frequency. The technical magazine Railway Track and Structures, which published a two-part analysis in November and December 1996, refers to a new type of crossing frog designed to eliminate the noise problem at its source by modifying the railway crossing so that the train wheel flanges bear on the bottom of the rail flange way. The articles from Railway Track and Structures conclude after many tests that this type of crossing frog is probably one of the most viable solutions and should be available for on-site testing in 1997.

Another solution would be to erect a movable noise barrier a total of 75 feet long and 12 feet high between 15 and 20 feet from the railway crossing which would be composed of acoustic panels that could be removed and stored during the winter. Such a structure would cost $30,000. This proposal, according to the City of Saint-Laurent, is not deemed practical because of the projected maintenance costs and the complexity of the panel removal and repositioning operations at the railway crossing.

Following CN's proposal to install polyvinyl chloride (hereinafter PVC) shutters on the outside of the exterior doors and windows of the condominium building, the City of Saint-Laurent submits that this solution must be rejected as it is uncertain whether or not such shutters would be effective against railway noise which has more low frequencies.

Further, according to the City of Saint-Laurent, reducing by half the speed of trains during passage over the railway crossing is another conceivable solution, because it would produce a 9 dBA reduction of the noise level to 55 dBA.

Erection of a permanent sound barrier (approximately 150 feet long by 20 feet high 30 feet from the railway crossing and costing approximately $150,000) is also conceivable. According to the City of Saint-Laurent, however, such a barrier would produce a 14 dBA improvement of the noise disturbance rather than the 25 dBA reduction sought.

The City of Saint-Laurent maintains that the report of the Groupe-Conseil LaSalle produced at the request of CN on the impact of the acoustic barrier on snow accumulation is based on incomplete assumptions which, according to the City, grossly, if not totally, distort the results. The City of Saint-Laurent is particularly surprised that the study does not take into account the snow-removal effect of the frequent passage of trains.

CN POSITION

CN notes that the problem lies in the noise caused by trains passing over the railway crossing. Several meetings have been held in the past between representatives of the City of Saint-Laurent, Château de Casson and CN to find a solution to this problem. The permitted speed of trains is 30 miles per hour on the Saint-Laurent Subdivision and 65 miles per hour on the Deux-Montagnes Subdivision.

The existing railway crossing was installed during modernization of commuter train service on the Montréal/Deux-Montagnes line in 1994-95. The ballast was replaced from a thickness of 9 to 12 inches in 1994 and the railway crossing and most of the ties and spikes were replaced in 1995. In 1996, the ministère des Transports of the Province of Quebec issued a certificate of fitness for the whole construction of the track on the Montréal/Deux-Montagnes line. This crossing frog is made of manganese and is inspected and maintained regularly as necessary.

On consulting with railway industry specialists it was found that no other type of railway crossing is currently in use in North America. Research is currently under way, however, by the Association of American Railroads (hereinafter the AAR), of which CN is a member. The technology under consideration would see the flange of the wheel bear on the bottom of the flange way at the railway crossing. This technology would prevent any rebound caused by the gap in the rail. According to CN, however, there are two major problems with this technology, namely, loss of traction due to displacement of the load from the wheel to the flange and premature wheel wear because railway wheel flanges were not designed and do not have the capacity to bear the full load of the cars. CN, as a member of the AAR, is willing to follow closely the testing process for this type of crossing and take part in evaluating any other prototype that might be tested in the North American industry. Further, CN is considering installing any new prototype at the railway crossing in question as soon as it is approved by the AAR and the appropriate safety authorities in Canada and the United States of America.

CN is of the view that the ideal solution would be to build a grade separation and thereby completely eliminate the source of the noise. This solution, however, has an astronomical cost and is not justified on any railway operating grounds. Another solution considered involves installing sliding PVC shutters on the outside of the exterior doors and windows of the condominium building, which, according to CN, would abate the noise caused by the environment.

With respect to the proposed solution of imposing a speed reduction, CN is of the opinion that it would interfere with its operations and should be considered only as a last resort.

As for a permanent noise barrier proposed by the City of Saint-Laurent, CN points out that it poses a number of problems with respect to restrictions on sight lines and snow accumulation. According to a report dated January 29, 1997, prepared by Consultants Dilali for CN, the acoustic barrier would obstruct the field of view of employees aboard railway vehicles towards converging tracks. However, the sight lines towards signal lights would not be obstructed by the acoustic barrier. Employees aboard vehicles essentially rely on signal lights to determine whether the track is open to them. Therefore, in terms of the prevention of railway vehicle collisions, construction of such a barrier would appear acceptable.

Also, according to the report, an acoustic barrier would increase the risk of accidents involving people on the track. Employees aboard vehicles try to prevent such accidents, but, to do so, they have to be able to see the vicinity of the track.

CN also commissioned a study by Groupe-Conseil LaSalle which issued on March 5, 1997 on the impact of an acoustic barrier on snow accumulation on the rails. The study concludes that the proposed barrier would not cause any accumulation on the rails so long as it was 15 or more feet high with the prevailing winds coming from the west-south-west. For all the heights considered, however, the barrier leads to the formation of significant snowdrifts on the railway tracks with winds from the northeast. The assumptions used in calculating the drifting and accumulation of snow estimate build-up of snow ranging between 5 and 9 feet depending on the height of the barrier and its distance from the tracks.

In reply to the City of Saint-Laurent's criticism of the report by Groupe-Conseil LaSalle, CN acknowledged the limitations of a theoretical assessment compared to a simulation or an evaluation in an actual operating situation. According to CN, however, theoretical assessment remains a useful tool for predicting potential problems.

According to the study, despite the impreciseness associated with the length of the barrier (compared with its height) and the uncertainties that invariably affect this type of calculation, the results indicated a considerable impact of the acoustic barrier on the accumulation of snow on the tracks. In the circumstances, installation of an acoustic barrier is not recommended. At the most, the study proposes to proceed with site trials to identify more rigorously the impact of such a barrier.

CN asserts that, if the City of Saint-Laurent or the owners of the Château de Casson (Phase III) wish to bear the cost of constructing and installing such an acoustic barrier on a trial basis, the railway company can certainly undertake to produce an analysis report of the disadvantages and additional operating costs associated with any such barrier, provided that such testing preserves CN's right to require dismantling of any such acoustic barrier.

ANALYSIS AND FINDINGS

The Agency is of the opinion that, in this case, the methods of operation of CN trains must be considered along with the fact that the railway preceded the residents involved in the complaint and the history of the real estate transactions and zoning changes that led to the construction of the Château de Casson (Phase III) building.

Based on the information on file, the Agency finds that CN made a change in its operation at this location, namely, running Montreal/Deux-Montagnes commuter trains for the Agence métropolitaine de transport. This commuter train service is now operated at higher speeds with new trains. To allow operation of this service, the whole railway infrastructure of the Deux-Montagnes Subdivision was modernized, including the railway crossing.

The Agency finds that the railway crossing was reconstructed by CN in 1994 in accordance with the latest relevant industry methods and standards. Other improvement work was also carried out on the switches in September 1995, and maintenance is also done in accordance with industry methods and standards. The Agency is therefore satisfied that the construction and maintenance of the railway infrastructure at this location complies with industry methods and standards.

The Agency notes that the City of Saint-Laurent installed a 350-foot-long earth embankment inside the CN right-of-way in 1993. This embankment constitutes an improvement for residents of the ground to the third floors, but not higher floors.

As for the proposed solutions, the Agency notes that construction of a grade separation would be very costly. In addition to the costs associated with the structure itself, the design of such a project would also have to include changes to a number of railway and urban infrastructure adjacent to the CN tracks requiring to be raised or lowered.

The Agency also notes that a new crossing design as discussed in Railway Track and Structures would reduce the noise at its source, and that the studies carried out, according to the AAR, show that the new crossing under trial would likely reduce annual maintenance and the frequency of replacement of this type of railway crossing. This new technology, however, is still in the preliminary stages, and no timetable can therefore be advanced at this time. The Agency notes that CN does not intend to adopt this technology failing conclusive test results. However, the Agency will require CN to follow this new technology and the tests of this type of crossing and to advise the Agency on developments for a period of one year following the date of this decision.

The Agency is of the opinion that CN operates its railway in a normal manner in accordance with industry standards, and any speed restriction might cause operating and competition constraints. Further, the Agence métropolitaine de transport, which manages the commuter train service, should be consulted before this option is considered.

As to the installation of sliding PVC exterior shutters, the Agency notes that no scientific data or study was produced confirming that this solution would significantly abate the noise level, and it therefore rejects this solution.

The Agency is of the opinion that the installation of a noise barrier is the best option immediately available, because it would reduce the average noise level by up to 14 dBA to approximately 50 dBA and would not significantly interfere with the operation of the railway.

Should the option of installing a permanent noise barrier be retained, the Agency will require CN to allow its construction on its right-of-way, in order to provide for the accommodation and comfort of the public.

Apportionment of Costs

In the recent study commissioned by the City of Saint-Laurent, Décibel attached the following excerpt from a CMHC document:

[Translation]

An analysis of available information indicates that residential development with adequate sound insulation could be allowed up to a noise level of 75 dB. Above this, the annoyances caused by road and rail traffic so seriously affects the environment that residential development should not be considered.

In relation to these categories, CMHC considers the following applications appropriate:

a) the upper zone, where the noise level exceeds 75 dB, is unsuitable for housing;

b) the intermediate zone, between 55 dB and 75 dB, is unsuitable for housing unless adequate sound insulation is provided;

c) in the lower zone, where the noise level is below 55 dB, housing construction meeting Residential Standards will provide adequate sound insulation.

The noise study shows that the average noise level near the condominium building at 815 Muir is as high as 64 dBA, or 9 dBA above the 55 dBA standard used by CMHC; this is perceived as being twice as noisy by the human ear. The Agency finds that, when the City of Saint-Laurent received the proposal for the construction of the Château de Casson for approval, it could have inquired about the surrounding noise level to ensure that it met the CMHC standards. At that point, it could have considered imposing certain restrictions, such as increasing the setback of the building from the track or using stricter construction standards with respect to acoustic insulation to remedy the ambient noise. Unfortunately, the building, it seems, was erected without such measures being applied.

Should a permanent noise barrier be constructed, the Agency deems it reasonable that the construction and maintenance costs should not be borne by CN. The Agency notes CN's willingness to assume all expenses related to an analysis of the disadvantages of such a screen and the additional operational costs it entails, and to resolve all railway safety issues in collaboration with Transport Canada. The railway company, however, must now co-exist with the residents of the Château de Casson and the City of Saint-Laurent and share in reducing the noise caused by its operations. Accordingly, the Agency is of the opinion that CN must remain liable for all other maintenance costs for its track infrastructure, including any additional cost associated with the presence of the noise barrier. The Agency also finds that CN will have to be liable for its supervision and monitoring costs during the construction and maintenance phases of the noise barrier.

An Order to this effect will be issued.

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