Order No. 2013-R-301

Order rescinded by 66-R-2014">Decision No. 66-R-2014

September 13, 2013

IN THE MATTER OF compliance by the Canadian Pacific Railway Company with Decision No. 301-R-2013 of the Canadian Transportation Agency.

File No.: 
R8030/13-04609

BACKGROUND

[1] On August 8, 2011, Jen Bysterveld, on behalf of herself and Sonja Bogdanovska, Liv Kolbe, Lara Murphy, Carolyn Fewer, Jenny Wood, Sandy MacIsaac, Karen Marcus, Ian McNichol, Nancy McNichol and Bill Bakelaar, President of the Inglewood Community Association filed a complaint against the Canadian Pacific Railway Company (CP) regarding noise and vibration associated with operations in CP’s Alyth Yard.

[2] In Decision No. LET-R-148-2012 dated October 5, 2012, the Canadian Transportation Agency (Agency) made preliminary findings that CP may be in breach of section 95.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA). As a result, the Agency directed CP to show cause 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 measures restricting volume of operations, location of operations, operating hours, operating procedures and noise barriers.

[3] Following the issuance of Decision No. LET-R-148-2012, the Agency made its final ruling in Decision No. 301-R-2013 (Decision). In the Decision, the Agency found that the increased noise caused by the load testing and idling operations at the Alyth Yard LRC since 2009 was unreasonable. The Agency therefore concluded that CP had not met its obligation under section 95.1 of the CTA.

[4] In the Decision, the Agency ordered CP not to conduct any load testing and idling operations at night (between 11:00 p.m. and 7:00 a.m.), unless it conducts these operations at a minimum distance of 400 metres southeast of the Rail Car Repair facility (Area). CP was to comply with the order made in the Decision by August 15, 2013.

Submissions received following the issuance of the Decision

[5] On August 15, 2013, CP advised the Agency that the Area referred to by the Agency for late night operations for inbound and outbound load testing and locomotives idling outside the LRC waiting for entry to, or exiting the building, is limited to two yard tracks that are adjacent to an active through track in close proximity on the one side and a dangerous goods isolation track and containment area on the other side. CP maintains that this relocation represents a “significant change to railway operations” as it claims that it was not a location ever used by CP for this purpose except on a short-term unsuccessful trial basis and even then, it was only used for inbound load testing.

[6] CP claims that this change in rail operations raises sufficient safety concerns which require a detailed formal risk assessment pursuant to paragraph 2(e) of the Railway Safety Management System Regulations, SOR/2001-37 (Regulations). According to CP, it cannot safely or legally meet the Agency’s order by the deadline of August 15, 2013.

[7] On August 27, 2013 the Agency received a communication from Ms. Bysterveld which is set out, in part, below:

We also wanted to keep you informed that loud idling continues around the LRC at Alyth during the 11pm-7am time frame, as does load testing, ie. August 24th/13-approximately 4:30a.m.-5am, Full throttle outbound testing in usual place at LRC, not complying with 400m away.

COMPLIANCE CASE

Following receipt of the communication from Ms. Bysterveld, a panel of Members was struck to deal with the matter of compliance.

Show Cause Direction of September 4, 2013

[8] On September 4, 2013, the Agency issued Decision No. LET-R-102-2013 (Show Cause Direction) providing CP until 5:00 p.m. on September 5, 2013 to show cause why the Agency should not order CP to cease and desist operations at the LRC between 11:00 p.m. and 7:00 a.m.

[9] On September 5, 2013, CP filed its response to the Show Cause Direction.

[10] On September 6, 2013, an erratum to the Show Cause Direction was issued, replacing the last paragraph with the following:

The Agency provides CP until 5:00 p.m. on September 5, 2013 to show cause why the Agency should not order CP to cease and desist load testing and idling operations at the Alyth Yard Locomotive Reliability Centre at night (between 11:00 p.m. and 7:00 a.m.).

Preliminary matter

[11] In its response to the Show Cause Direction, CP raised concerns that through its compliance actions in this proceeding, the Agency was broadening the scope of the order made in the Decision.

[12] CP’s concern results from the language used in the last paragraph of the Show Cause Direction in Decision No. LET-R-102-2013. The erratum has since clarified that the potential cease and desist order contemplated in the Show Cause Direction did not extend beyond the scope of the order made in the Decision.

[13] For this reason, in light of the erratum, the Agency need not address CP’s arguments with respect to the scope of the order to be made in this compliance proceeding.

CP’s response to the Show Cause Direction

[14] CP contends that the Agency never ordered CP not to idle for LRC-related activities between 11:00 p.m. and 7:00 a.m. CP’s position is that the Agency limited the location of those specific operations within the yard.

[15] CP argues that the Agency is requiring its response based upon an undocumented hearsay communication/allegation and, according to CP, it has not had an opportunity to examine or respond to the allegation.

[16] CP submits that the source of the idling noise is also not identified and it is possible that the idling noise is from a source other than that related to the repair facility, such as that related to locomotives waiting for servicing, which it claims is not the subject of the Decision.

[17] CP asserts that the relocation of its activities in a dangerous goods containment area is of concern and maintains that it is required by the Regulations to complete a risk assessment as part of its safety management system as the relocation of the activities to the Area represents a significant change to railway operations.

[18] CP claims that this requirement has been recognized by Transport Canada personnel.

[19] CP submits that it has commenced and will complete a comprehensive risk assessment.

ANALYSIS AND FINDINGS

[20] CP’s position is that the Agency should not make its decision based on what CP considers to be hearsay evidence which CP has not had an opportunity to examine or respond to. The Agency does not agree.

[21] The Agency, through its Show Cause Direction, has provided CP with a full opportunity to examine and respond to the information received by the Agency that CP was not complying with the order made in the Decision.

[22] The Agency, as an administrative tribunal, is master of its own proceedings and is not bound by the same rules of evidence that are applicable to courts of law. As such, it has been the Agency’s longstanding practice to process cases by way of paper hearing and to accept written statements without requiring the parties to file an affidavit, unless the Agency finds it necessary to order the production of affidavits pursuant to section 13 of the Canadian Transportation Agency General Rules, SOR/2005-35, as amended.

[23] The Agency finds that the statement by Ms. Bysterveld regarding noise from load testing and idling operations between 11:00 p.m. and 7:00 a.m. constitutes reliable and credible evidence that CP may not be complying with the order made in the Decision.

[24] In this case, CP only seeks to dismiss the information received by the Agency by asserting that it constitutes unsupported hearsay. It chose not to address or refute the statements of Ms. Bysterveld about operations being performed in breach of the order made in the Decision. CP did not even state whether it had been conducting load testing or idling operations at night. Further, CP’s August 15 letter focuses solely on the load testing and idling operations in the Area and avoids any reference at all to compliance on its part with the requirement to cease load testing and idling operations between 11:00 p.m. and 7:00 a.m.

[25] The Agency has considered CP’s position that it cannot safely or legally meet the Agency’s directive without first completing a risk assessment.

[26] It is clear that CP must operate its railway safely. It must also comply with regulatory requirements concerning operations in its yard.

[27] In Decision No. LET-R-148-2012, CP was explicitly 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.” That Decision issued on October 5, 2012 and required a response from CP by November 5, 2012. Following that, CP requested an extension to February 5, 2013, which was granted by the Agency.

[28] CP was clearly afforded a full opportunity to provide submissions and evidence on the issue of appropriate mitigation measures in the proceedings that led to the Decision.

[29] In its response to Decision No. LET-R-148-2012, CP did not raise any of the safety concerns it now invokes as reasons why it cannot comply. In this regard, CP’s argument that a risk assessment is required contradicts its earlier statement outlined in Decision No. LET-R-148-2012 that it performed inbound load testing in the Area when shop tracks were at capacity. CP’s claim is another example of an inconsistent statement. In the Decision, the Agency stated:

The Agency notes that CP’s claims throughout the pleadings process were inconsistent. CP submitted data, and made claims on several occasions which it subsequently retracted or challenged when the Agency cited them. These include claims about mitigation measures that were not, in fact, undertaken. This brings into question the reliability of the information provided.

[30] The Agency finds that while CP must comply with safety requirements, the order made in the Decision is clear. If load testing and idling operations cannot be conducted in the Area whether due to safety or for other reasons, CP must not conduct these operations at night. CP makes a distinction between idling for servicing and idling related to repairs. The Agency did not make such a distinction in the order made in the Decision. Further, CP’s claim that it must carry out a risk assessment does not preclude it from ceasing these operations during the hours specified.

[31] In its September 5 response to the Show Cause Direction, CP referred to “the importance of the matter and the apparent urgency the Agency has now attached to it.” As CP is aware, the originating complaint with respect to noise was filed on August 8, 2011. Since the filing of the complaint two years ago, the noise producing operations performed which were determined by the Agency to be in breach of section 95.1 of the CTA appear to have continued. Further, four weeks have passed since the August 15 deadline for compliance by CP with the order made in the Decision without any confirmation from CP that the load testing and idling operations have ceased between the hours of 11:00 p.m. to 07:00 a.m. The Agency finds the matter of compliance to be one of considerable urgency.

[32] The Agency considers that CP can comply with the order made in the Decision.

[33] The Agency finds that CP has failed to demonstrate why the Agency should not order CP to cease and desist from conducting operations in contravention of the order made in the Decision.

ORDER

Based on the above, the Agency, pursuant to section 26 of the CTA, orders CP to immediately cease and desist load testing and idling operations in proximity to the LRC at night (between 11:00 p.m. and 7:00 a.m.).

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