Decision No. 301-R-2013

This Decision has been varied by 66-R-2014">Decision No. 66-R-2014

August 1, 2013

COMPLAINT by 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, pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No.: 
R8030/11-04173

BACKGROUND

[1] On August 8, 2011, Jen Bysterveld filed a complaint with the Canadian Transportation Agency (Agency), 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 (ICA) [complainants], with regards to the noise caused by the increased load testing and idling operations resulting from the Canadian Pacific Railway Company (CP) repair activities at the Alyth Yard Locomotive Reliability Centre (LRC).

[2] Throughout the proceeding, there were written submissions filed by the parties. Agency staff conducted a site visit to the Alyth Yard on March 19 and 20, 2012 to gain a better understanding of the general area and CP’s maintenance operations. Agency staff produced meeting minutes of the site visit (Meeting Minutes) which were accepted by the parties and form part of the pleadings before the Agency.

SHOW CAUSE DECISION

[3] In Decision No. LET-R-148-2012 dated October 5, 2012 (Show Cause Decision), the 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 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 ordinary comfort or convenience of living of an average person; and,
  • 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.

[4] CP submitted its response to the Show Cause Decision on February 5, 2013. On May 3, 2013, the complainants submitted comments on CP’s response.

RESPONSE TO THE SHOW CAUSE DECISION

[5] CP made six distinct claims which it contends support its position that the Agency should not dispose of the complaint as the Agency proposed in the Show Cause Decision. Under each of the claims, CP challenged preliminary conclusions and/or findings that it alleges were made by the Agency in the Show Cause Decision. The preliminary conclusions and findings, identified by CP as “assumptions”, are:

  1. There was a 60 percent capacity increase in the number of locomotives repaired at the LRC in 2009;
  2. After improvements were made to the LRC in 2009, another shift was added to allow the LRC to operate 24 hours a day, seven days a week;
  3. From 2009 to 2012, CP more than doubled the number of idling locomotives and load testing actions in a 24-hour period;
  4. Since 2009, the complainants have been subject to increased locomotive engine noise at high decibel levels of long and frequent duration. Sound levels from load testing and idling could be up to 68 dBA with a difference from background sound levels of up to 18 dBA;
  5. The complainants had no issue with the noise and vibration from the Alyth Yard prior to 2009;
  6. CP has not explored mitigation measures to impact noise from its operations at the LRC.

Claim No. 1: There was a 60 percent capacity increase in the number of locomotives repaired at the LRC in 2009

CP’s position

[6] CP claims that the Agency’s conclusion that the number of locomotives repaired daily at the LRC increased from 15 in 2007 to 25 in 2011 (a 60-percent increase) is not demonstrated by actual data. CP contends that the number of locomotives assigned to an LRC has no direct correlation to the number of locomotives processed per day by the LRC, and that there are many factors, including the age and reliability of the locomotive, that should be factored in. CP asserts that the improvements did not add 60 percent track space to the LRC building in order to add 10 locomotives per day.

[7] CP submitted a Load Testing Community Report (LTCR) which records load-testing activities over a 43-day period from November 28, 2012 to January 9, 2013. The data demonstrate that there were 125 load tests completed. Of the 125 load tests, 10 inbound tests and 115 outbound load tests were completed. Only 24 outbound load tests were conducted between the night hours of 00:00 and 6:00 a.m.

The complainants’ position

[8] The complainants state that the increase in the number of locomotives being repaired from 15 to 25 was based on data submitted by CP and is reflected in the Meeting Minutes. Further, the complainants contend that the data log argument is flawed because the sample period does not relate to the 2007 to 2011 time period and the data log covers less than three percent of the four‑year period in question.

[9] According to the complainants, the LTCR displays instances when the community would have experienced sleep disruption by locomotive load testing over a 43-day period.

[10] The complainants assert that regardless of whether a locomotive is undergoing maintenance or repair, there is still a consistent queue that surrounds the LRC or newly constructed Suspension and Bearing Inspection Facility (SBI). They add that these locomotives idle 24 hours a day, 7 days a week, contributing to the unreasonable noise and vibration.

Analysis and findings

[11] CP essentially claims that the Agency was incorrect in assuming an increase in the number of locomotives repaired daily at the LRC from 2007 to 2011 on the basis of the differing number of repairs recorded in the LTCR from November 28, 2012 to January 9, 2013.

[12] The Agency considers that the volume of repairs performed in a given period does not prove the volume of repairs performed during another period. Therefore, the Agency finds the fact that the LTCR shows a reduced number of repairs during one specific period in 2012-2013 does not render incorrect the Agency’s preliminary finding with respect to the number of repairs completed in 2011.

[13] As set out in the Show Cause Decision, the Agency’s conclusion that up to 25 load tests per day could be performed at CP’s LRC in 2011 is based on information provided by CP during the site visit. This information was subsequently incorporated in the Meeting Minutes which were provided to CP for its comments. It is worth noting that CP did not raise any concern at that time, nor did it request that this information be corrected.

[14] Accordingly, the Agency finds that the evidence supports its preliminary finding that the number of locomotives repaired in a single day increased from 15 in 2007 to 25 in 2011.

Claim No. 2: After improvements were made to the LRC in 2009, another shift was added to allow the LRC to operate 24 hours a day, seven days a week

CP’s position

[15] CP states that if it provided evidence that led the Agency to infer or conclude that another shift was added in 2009 to allow the LRC to operate 24 hours a day, 7 days a week, CP wishes to correct the record.

[16] CP maintains that it did not add an entire shift in 2009, and therefore, it has always performed the repair and maintenance activities, including inbound and outbound load testing, during the day and night hours for many years on a 24 hours a day, 7 days a week basis.

[17] CP filed a signed affidavit from John McLuskey, a current CP employee, in which he states that he has been with CP since 1983. He points out that in 1991, he was promoted to Supervisor, and would schedule all three eight-hour shifts, including a night shift, at the LRC.

The complainants’ position

[18] The complainants state that CP has withdrawn information previously provided in its letter of February 5, 2012, responding to Agency questions, wherein it is noted that a new shift was added after consolidation to allow the LRC to run on a 24-hour basis. The complainants also argue that CP’s introduction of an affidavit from one of its own employees directly contradicts its previous clearly stated position which, according to the complainants, demonstrates another inconsistency on the part of CP.

[19] The complainants assert that they are aware that the former Diesel Shop was in operation 24 hours a day, 7 days a week, however, the upgrades to the Diesel Shop creating the LRC would require additional manpower, or “additional shift” at all hours of the day, or all shifts.

[20] The complainants acknowledge that CP has provided the shift information for 2005 to 2009; however, CP has not included the shift information from 2010 to present. The complainants contend that this does not provide a comparison or measurement of the operational hours prior to the LRC and after the LRC.

Analysis and findings

[21] The Agency notes that in a letter dated February 5, 2012, CP stated that another shift was added. The Agency accepts CP’s explanation that this did not mean that CP added an “entire shift” in 2009.

[22] CP asserts that it has always performed the repair and maintenance activities, including inbound and outbound load testing, during the day and night hours for many years on a 24 hours a day, 7 days a week basis. Based on this, the Agency finds that CP has conducted inbound and outbound load testing during the day and night hours for many years on a 24 hours a day, 7 days a week basis.

[23] However, in making its preliminary findings in the Show Cause Decision, the Agency did not use the number of staff shifts in modelling the estimated noise level of 68 dBA. Therefore, the amendment to the work shift information by CP is not relevant to the Agency’s estimated noise level.

Claim No. 3: From 2009 to 2012, CP more than doubled the number of idling locomotives and load testing actions in a 24-hour period

CP’s position

[24] CP contends that the Agency assumes that number of the locomotives assigned to the Alyth Yard doubled and, as a result, the number of idling and load testing actions doubled. CP states that the actual data in the LTCR demonstrate that the number of idling and load testing actions in a 24‑hour period has not doubled compared to 2009. CP submits that the number of locomotives assigned to a maintenance facility cannot simply be extrapolated into a noise factor given the discrepancy of the locomotive load testing data.

The complainants’ position

[25] The complainants point out that the following statistics are found in the Meeting Minutes and were provided by CP: outbound load testing of 6 to10 locomotives (typical test time of 60 minutes) and inbound load testing of 10 to 15 locomotives tested for 20 to 30 minutes occurs daily.

[26] The complainants claim that the data provided by CP were incomplete and should be provided in their entirety to defend CP’s position that the volume did not double. The complainants state that the LTCR does not detail the implications of idling which impacts not only the noise, but also the vibration.

[27] The complainants point out that the testing by Jade Acoustics Inc. (Jade) in the Acoustic Assessment Report, Alyth Yard Locomotive Reliability Centre, dated February 5, 2013 (Jade Report) took place from January 14 to 16, 2013. The complainants add that the temperature lows for the month of January were warmer during the testing period, where January 15 had a low of minus 1.5 degrees Celsius (°C) and January 16 had a low of minus 5 °C as compared to the rest of the month, when temperatures were notably colder. The complainants maintain that these weather conditions mitigated the noise generated during the test period, but do not reflect typical conditions associated with the weather triggered automation of the “smart start” technology and related idling.

Analysis and findings

[28] CP’s position is that a noise factor cannot be extrapolated from locomotive assignment numbers.

[29] However, as set out in the Show Cause Decision, the Agency did not use the locomotive assignment numbers in applying Method A of the Agency’s Railway Noise Measurement and Reporting Methodology. Rather, the Agency based its estimation of the noise level using the information provided by CP at the site visit, and subsequently incorporated in the Meeting Minutes, with respect to the number of load tests and idling locomotives that could be performed daily at the LRC in 2011. As set out in the analysis under Claim No. 1 above, CP has not demonstrated that the locomotive repair numbers used in the Show Cause Decision were incorrect.

[30] For these reasons, CP’s argument that the Agency erroneously extrapolated a noise factor from the LRC’s locomotive assignment number is unfounded.

Claim No. 4: Since 2009, the complainants have been subject to increased locomotive engine noise at high decibel levels of long and frequent duration. Sound levels from load testing and idling could be up to 68 dBA with a difference from background sound levels of up to 18 dBA

CP’s position

[31] Jade conducted sound measurements in and around the LRC from January 14 to 16, 2013, throughout the day-time and the night-time periods. According to the Jade Report, the weather during the measurement period was minus 5 °C to 8 °C with observed wind speeds of 20 km/h or less. The Jade Report reflects that sound measurements were conducted in CP’s Agincourt Yard, Ontario, on December 19, 2012, to aid in modelling the load testing activities.

[32] The noise sources of concern addressed in the Jade Report are idling and load testing of locomotives around the LRC. An acoustical analysis was conducted for three operational scenarios: 2007 (pre-LRC), 2011 (post-LRC) and 2013 (current).

[33] The Jade Report indicates that the analyzed activities for the 2007 and 2011 modelling scenarios were based on the Meeting Minutes and the LTCR. For the 2013 modelling scenario, CP indicates that the activities are based on the LTCR and observations made by Jade’s personnel during a January 2013 site visit.

[34] Table 6 of the Jade Report indicates that the 2011 and 2013 modelling scenarios assumed inbound and outbound load testing on Tracks 1 to 4, which CP claims provides screening from the residential portion of Inglewood by the LRC building.

[35] The Jade Report reflects that the activities around the LRC (including idling locomotives and load testing) are audible throughout the Inglewood community, with the higher sound levels occurring where the receptors have a clear line of sight to the Alyth Yard.

[36] The Jade Report describes the ambient sound environment to be dominated by road traffic on Deerfoot Trail SE and Blackfoot Trail SE, aircraft flyovers, and stationary noise from the Canada Malting facility. The Jade Report provides minimum measured ambient sound levels on January 16, 2013 of 55 dBA during the day-time and 46 dBA during the night-time, and concludes that the ambient sound levels are not expected to be significantly different from 2007 to 2013.

[37] Table 7 of the Jade Report indicates that the predicted day and night sound levels from locomotive idling and load testing range from 53 to 64 dBA for 2007, 51 to 61 dBA for 2011, and 50 to 61 dBA for 2013.

[38] The Jade Report notes that the engine noise is dominated by low frequency noise (LFN) and is distinguishable over other sounds in the neighbourhood even at low sound levels. The Jade Report also notes that typical residential construction is not effective in reducing the LFN of idling locomotives. According to the Jade Report, activities and resultant sound levels conducted in the Alyth Yard are typical of all rail yards both in magnitude and character of the sound.

[39] The Jade Report indicates that sound barriers within the Alyth Yard were investigated to determine the feasibility of mitigating some of the noise associated with the operations around the LRC. According to the Jade Report, sound barriers of 9 to 12 metres in height and approximately 300-metre long would be required at a cost of approximately $1,500,000.00 to achieve a 5 dB reduction in the predicted sound levels in the community. The Jade Report concludes that due to the limited effectiveness, operational and maintenance problems created and the high cost involved, sound barriers are not proposed.

[40] CP contends that based on the conducted measurements and analysis, changing operations over time at the Alyth Yard have had a positive effect on the relevant acoustical metrics. CP also contends that the sound levels at all receptors decreased in 2013 compared to 2007, and sound levels from load testing and idling are not the estimated 68 dBA, but are significantly lower.

[41] In CP’s LTCR, a data log of its inbound and outbound load tests over a 43-day period from November 28, 2012 to January 9, 2013 recorded inbound testing on Tracks East 1, 2, 3, and 7 and outbound testing on Tracks West 1 to 4 and East 1, 2 and 4.

[42] CP states that it is removing the wye track at Alyth Yard, which is located beside a number of residences, and installing a turntable. CP asserts that it will no longer idle locomotives on this track and will use the new turntable to reposition the locomotives.

The complainants’ position

[43] The complainants argue that CP stated during several meetings of the joint CP/City of Calgary Alyth Yard Noise Study that CP has no data records of sound from 1990 to 2010 and, therefore, the 2007 data listed in CP’s submission dated February 5, 2013 is of unknown and unverifiable origin. The complainants assert that the 2007 data were not generated by Jade within its study, so CP cannot reasonably rely upon it.

[44] The complainants contend that a three-day test is far too short to be representative of anything. Taking an ambient measurement of sound which includes all noises is cumulative, logarithmic, and therefore meaningless. The “attended” sound tests were actually only 14 hours in duration, not three days. “Spot” readings such as these do not work and would not be acceptable to the Energy Resources Conservation Board (ERCB). The only ongoing measurements were attached to telephone poles which, as reflective devices, do not generate acceptable test data.

[45] The complainants assert that proper sound measurements can only be conducted by building a grid over a sound source and specifically measuring it, and that each source has a “sound signature” that can be specifically measured. They add that by not collecting the noises at source, this has become a sound survey which is simply a collection of all noises in the area with meaningless desired results. There is no way of ranking the impacts of the sound sources or how each source is impacting the individual locations in the area.

[46] The complainants also assert that proper noise measurement is based upon specific temperature, humidity, wind speed and direction. Variants in any of those factors can change the measurement by 10 dBA. The complainants maintain that if data do not include each of these factors, the data are considered inadmissible.

[47] The complainants submit that an overriding principle of sound measurement with a view to attenuation is identifying the worst case scenarios – the idea being that if those cases are dealt with, the least case has implicitly been dealt with. They argue that at the Alyth Yard, this means low temperatures, high humidity, night conditions and load testing.

[48] The complainants state that the broad references of temperature, humidity and wind speed taken 17 km away with no wind direction cited locally indicate that this clearly did not happen. They further argue that a printout from a public weather site is not admissible. The complainants contend that sound measurements taken in wind conditions exceeding 8 km/h are not considered acceptable, and that while the airport readings are not relevant to the site, if the winds were gusting up to 40 km/h, more than likely this was exceeded.

[49] According to the complainants, the statement that “a penalty for low-frequency noise can be difficult to establish” would naturally be the position of the party that is producing that LFN. They add that unfortunately, measuring at a dBA level instead of a dBC basis serves to wilfully mask some of the most dangerous sound impacts being generated and imposed upon the adjacent community.

[50] The complainants point out that “Leq” is a methodology used to average out sound which removes “spikes”, such as engine start-ups. A-weighted equivalent sound also tends to scrub lower frequency sounds. ISO 9613-2 is an empirical international standard set in 1996 and is seen by some as being vague and imprecise, particularly where sound interference effects are averaged out. They further argue that it appears that every effort has been made to screen out the statistics that would illustrate the true intrusion of low-frequency, sporadic sounds that make the LRC environment so harmful.

[51] The complainants argue that the reference to external sounds, particularly aircraft, is irrelevant given that the worst case scenario is night and flights do not cross the neighborhood then. Various other noise sources in the light industrial area are referred to. The complainants assert that CP should be willing to stop all operations at the Alyth Yard for 24 hours to capture a clear ambient reading. The complainants also state that the sound levels presented by CP were A‑weighted sound levels rather than C-weighted sound levels. As a result, the complainants contend that CP did not take into consideration low frequency noise and if reasonable noise levels were exceeded.

[52] The complainants maintain that the statement “sound measurements were not conducted prior to 2013” effectively indicates that there are no data available to model. According to the complainants, there is no evidence indicating how this correlates to the existing statistics, and there is no indication as to what activity was going on simultaneously, i.e., whether idling and load-testing were mixed, as the sounds of multiple activities are additive in impact.

[53] The complainants assert that the dBC minus dBA level of 20 dB is at a level that would be penalized by the ERCB under its regulations. There also is an admission that idling may be an LFN generator in the bands of 65 to 75 dB which exceeds by-laws for continuous sounds in residential areas: 50 dBA night time levels and 65 dBA day-time levels, or 5 dBA over the ambient sound level.

[54] The complainants concur that sound barriers are not effective. Sound, particularly low frequency sound, will creep over anything in its path. The complainants find it odd that Jade dismisses a sound barrier as a solution but claims that the LRC buildings are “screening” load testing from the community.

[55] The complainants state that vibration issues are not addressed anywhere in the Jade Report. They assert that the Jade Report concludes that load testing and idling increase ambient sound levels at night by 4 to 15 dB, which represents an approximate increase over ambient noise of between 150 and 250 percent.

[56] The complainants maintain that the mitigation measures have been ineffective, and that “CP has not moved inbound testing behind the LRC (this has never been mentioned, nor demonstrated.)”

Analysis and findings

[57] CP challenges the Agency’s estimation in the Show Cause Decision that sound levels could be up to 68 dBA, with a difference from the ambient sound level of 18 dBA. CP asks the Agency to instead conclude that noise levels have been reduced over time as a result of changes in operations, as evidenced by the results of the noise modelling performed by Jade with respect to years 2007, 2011 and 2013.

[58] The Agency is of the opinion that the modelled noise levels appearing in the Jade Report can only be relied on in determining this complaint if the Agency is satisfied that the assumptions used by Jade in modelling reflect the information contained in the Meeting Minutes with respect to the number of locomotives idling and load tested and with respect to the repair operations of the LRC activities for the relevant periods.

Jade Report assumption – Number of locomotives

[59] The complainants suggest that the 2007 data listed on pages 5 and 6 of CP’s submission dated February 5, 2013 is of unknown and unverifiable origin. However, the Agency notes that in its reply, CP included a table entitled “Analyzed Activities” which details the number of locomotives per day used by Jade in modelling the noise.

[60] The Agency also notes that the Meeting Minutes indicate that there were up to 15 idling locomotives and three to four load tests per day in 2007. Therefore, the Agency finds that the locomotive count included in the table entitled “Analyzed Activities” reflects the highest number of locomotives as incorporated in the Meeting Minutes. Further, the Agency notes that there are no discrepancies between that table and the Meeting Minutes with respect to the number of locomotives for the year 2011.

[61] For this reason, the Agency finds that the Jade Report assumed the correct number of locomotives in the noise modelling.

Jade Report assumption – LRC repair operations

Estimated sound level from engine activities

[62] The Jade Report indicates that the 2011 and 2013 modelling scenarios assumed that all load testing, whether inbound or outbound, was performed in the portion of Tracks 1 to 4 where the Report indicated that the LRC provides screening to some of the residences. According to the Jade Report, the associated decibel reduction due to the relocation of the load testing to Tracks 1 to 4 is approximately 6 dBA.

[63] However, the Meeting Minutes show that in 2011, CP was actually conducting its inbound tests in area E of the Aerial map appended to the Meeting Minutes, corresponding to Tracks 1 to 10. The Agency’s analysis of the Aerial map reveals that only a small area of Tracks 1 to 4 may be shielded by the LRC, which means that locomotives load tested in the remaining areas of Tracks 1 to 4, as well as those tested on Tracks 5 to 10 would have a greater exposure to residences, with limited or no shielding by the LRC. The Agency concludes that the modelling conducted in the Jade Report does not accurately reflect operations outlined in the Meeting Minutes, which indicate that inbound tests can occur on Tracks 1 to 10.

[64] The Aerial map shows that some of the complainants’ residences have a clear line of sight to the LRC, without the benefit of shielding from the LRC building itself and nearby industrial buildings, depending on the actual location where each locomotive may be placed when inbound load tested.

[65] As a result, the noise reduction considered in the Jade Report may overestimate the shielding effects of the LRC. However, the Agency notes that the Jade Report only mentions the software used to model the noise levels but does not provide any details as to how Jade calculated the 6 dBA noise reduction it claims the LRC provides when locomotives are load tested. Therefore, the Agency is not in a position to adjust the noise reduction applied by Jade to properly reflect the actual inbound load testing operations.

[66] For the reasons above, the Agency cannot rely on the Jade Report modelled sound levels in making its determination in this complaint. Accordingly, the Agency concludes, based on its 2011 estimate in the Show Cause Decision, that the sound levels from load testing and idling could be up to 68 dBA.

Engine activity sound level versus ambient sound level

[67] As set out in the Show Cause Decision, when assessing the impact of noise, the Agency examines whether the noise from operations exceeds the baseline sound level.

[68] In the Show Cause Decision, the Agency concluded that the LRC operations caused noise levels of 68 dBA, with a difference from background sound levels of up to 18 dBA, based on an estimated ambient sound level of 50 dBA during the night.

[69] However, the Agency notes that Jade measured the ambient sound level and reported that the minimum measured ambient sound level on January 16, 2013 was actually 46 dBA during the night. Jade concluded that the ambient sound levels are not expected to be significantly different from 2007 to 2013.

[70] This means that when comparing the actual measured ambient sound level of 46 dBA to the Agency’s estimated noise level of 68 dBA, the difference could be as high as 22 dBA. Even if the Agency had accepted the noise levels modelled by Jade, the difference in the ambient sound level would be, according to the Jade Report, up to 15 dBA, assuming a reduction of approximately 6 dBA as a result of the relocation of the load-testing activities. As the Agency has already concluded that the reduction assumed in the Jade Report was likely overestimated, actual sound level differences experienced by the residents may be even higher than the Agency model predicted. As outlined in the Show Cause Decision, the Agency is of the opinion, based on the Proximity Guidelines and Best Practices issued in 2007 by the Railway Association of Canada, that sound levels above the baseline levels in excess of 5 dBA may result in impacts for residents. By necessary implication, the more the sound level exceeds that baseline level, the greater the impact on residents. The Agency considers that a noise level exceeding the ambient level by 15 dBA at night when people are generally more sensitive to noise, would cause disturbance to residents.

Claim No. 5: The complainants had no issue with the noise and vibration from the Alyth Yard prior to 2009

CP’s position

[71] CP states that the following is the most important finding by the Agency with respect to the complaint by the complainants: “The complainants state that they had no issue with noise and vibration from Alyth Yard prior to the consolidation.”

[72] CP contends that it follows that noise levels prior to 2009 from the LRC operations are viewed as reasonable by the complainants. CP asserts that the Jade Report clearly shows that noise levels as modelled and measured are lower than 2007 and, as a result, the only conclusion that can be reached is that noise levels are not unreasonable.

The complainants’ position

[73] The complainants contend that the flaw in CP’s argument is that there are no verifiable statistics regarding 2007, so nothing has been proven, nor can be, in that regard.

[74] The complainants state that residents who have been living in the same houses adjacent to the Alyth Yard for ten years or more prior to 2009 did not hear inbound or outbound load testing “as it has existed after 2009.”

Analysis and findings

[75] The Agency has already concluded that it cannot accept Jade’s noise modelling results for 2011 as the modelling conducted by Jade does not accurately reflect operations outlined in the Meeting Minutes. As a result, the Agency finds that the noise reduction over time, as claimed by CP, is unsubstantiated.

Claim No. 6: CP has not explored mitigation measures to impact noise from its operations at the LRC

CP’s position

[76] CP claims that the Agency assumes that it has not explored mitigation measures with respect to the LRC, and that this assumption is incorrect. CP states that it has explored a wide range of options and undertaken changes in a number of areas.

[77] CP submits that it has moved the inbound and outbound load testing behind the LRC building to shield the inbound and outbound load testing noise from the residential neighbourhood. CP maintains that this is likely the most significant mitigation measure that can be taken as the building absorbs a significant amount of sound. CP adds that this has been implemented even though it creates the need for additional movements of the locomotives at an additional cost to CP. According to the Jade Report, the relocation of load testing results in a reduction of approximately 6 dBA.

[78] CP asserts that it is always looking for new technology and its piloting of “Expert on Alert” technology demonstrates its interest in reducing the number of inbound load tests required at the LRC.

[79] CP states that although dismissed by the Agency as a mitigation measure, CP again wishes to emphasize that the “smart start” technology is a mitigation measure and CP estimates that approximately 95 percent of the locomotives going through the LRC are now equipped with that technology.

[80] CP states that it is removing the wye track at the Alyth Yard, which is located beside a number of residences, and installing a turntable. CP contends that it will no longer idle locomotives on this track and will use the new turntable to reposition the locomotives.

[81] CP advises that it is reviewing its locomotive fleet, with a view to increasing its efficiency. CP also intends to sell older and problematic locomotives with a view to creating a more efficient fleet with decreased repair and maintenance requirements for the LRC.

[82] CP contends, as stated in the Jade Report, that due to the limited effectiveness, operational and maintenance problems created and the high cost involved, sound barriers were not proposed by Jade.

[83] CP states that it is willing to continue to minimize the acoustical impacts to the residents of Inglewood by minimizing the staging of fully-serviced locomotives on Tracks 9 and 10 to situations when the tracks at the Crew Booking-in Office are at capacity. The Jade Report indicates that the staging of locomotives will provide a reduction in the sound level of up to 2 dBA.

The complainants’ position

[84] The complainants state that CP’s claim No. 6 is baseless as one of the requests that came from the Agency was an explanation by CP of the mitigation measures taken. The complainants argue that they have never suggested any such thing; therefore, this, in their view, represents misdirection by CP.

[85] The complainants assert that they have simply maintained that what CP has deemed mitigation measures to date has been ineffective.

[86] The complainants contend that CP has not moved inbound load testing behind the LRC (according to them, this has never been mentioned or demonstrated). The complainants also argue that the LRC is a metal building that does not absorb noise.

[87] The complainants assert that “piloting” of “Expert on Alert” technology is a misnomer as it has been around since the 1990’s, proving that it is not a successful project and that it was not a mitigation initiative to respond to the expansion.

[88] The complainants point out that “smart start” technology is voluntary as stated on the handout from the March 19, 2011 meeting. They contend that the use of this technology has not been mandated for employees by CP, and that, even if it were, it would not be an effective measure during cold weather conditions.

[89] The complainants state that the removal of the wye track and installation of a turntable should not be considered as a mitigation measure for the residents. It was the residents who brought this to the attention of the Agency on April 3, 2012. They add that the removal of the wye track was never offered to the residents as a mitigation measure, and CP was not forthcoming with this information and, in fact, CP attempted to position this as beneficial to the residents.

[90] The complainants assert that a current review by CP of its locomotive fleet does not qualify as a mitigation measure that was explored. They maintain that this statement is irrelevant as a defence by CP.

[91] The complainants contend that Jade has only examined the mitigation options of sound barriers and limited staging. They concur that sound barriers have limited effectiveness.

[92] The complainants recommend an additional option of trapping and attenuating the sounds at the source, such as an acoustic building. They submit that this is a proven and cost-effective solution that has been used with success by organizations that generate sound levels that far exceed those that CP generates.

[93] The complainants suggest that a silencer is available that is acoustically engineered to provide engine exhaust noise removal. This technology completely silences engine exhaust noise and exists for 5000 HP engines.

Analysis and findings

[94] In the Show Cause Decision, the Agency recognized that CP implemented measures intended to mitigate the noise and vibration impacts of its repair activities, including the use of “smart start” and “Expert on Alert” technologies, the relocation of outbound load testing behind the LRC and the replacement of older Gen 1 locomotives with newer Gen 2 locomotives. However, the Agency concluded that despite these measures, the noise and vibration continue to be an issue for the complainants.

[95] The Agency had estimated sound levels of 68 dBA by using the information in the pleadings: 1) including the inbound load testing volumes in the Meeting Minutes which reflected the use of “Expert on Alert”; 2) taking into consideration the fact that the LRC building does not consistently provide physical shielding to the residences and that load testing could occur during the night; and 3) using sound level data of an engine connected to a load cell and idling provided by CP.

[96] CP’s position is that “smart start” anti-idling technology constitutes a noise mitigation measure. The Agency accepts the fact that the effect of this technology is to reduce the duration of idling periods. However, the Agency notes that this technology does not shut down the engine when the temperature drops below 5 °C. Moreover, the Agency notes that in the Jade Report filed by CP, no noise reduction factor has been assumed in association with the use of that technology. The Agency therefore concludes that the “smart start” technology does not constitute a mitigation measure that results in a noise reduction consistently throughout the year.

[97] In the Show Cause Decision, the Agency used, in its calculation, the United States Code of Federal Regulations: 40 CFR 201.11 – Standard For Locomotive Operation Under Stationary Conditions (CFR Standard). The CFR Standard was provided by CP in its pleadings. The CFR Standard establishes the maximum sound pressure level for newer locomotives manufactured after December 31, 1979.

[98] The Jade Report provided a summary of sound power levels used in the noise modelling. The Agency notes that the measured idling sound level by Jade is lower than the CFR Standard. Although the idling sound level may be lower, the load testing locomotives on throttle 8, measured by Jade, is the loudest source of noise. When the load testing datum provided in the Jade Report is converted into a sound pressure level, the estimated sound level is consistent with the CFR Standard (the calculation assumes a simplified inverse square law method with free field conditions, not including atmospheric and ground attenuation, energy radiating from a point source in the far field, with a reduction of 6 dBA for every doubling of distance from the source). The estimated sound level based on the Jade Report demonstrates that CP’s locomotives on a load cell operate close to the CFR Standard. Therefore, when considering the loudest source of noise, the Agency has already taken into account the use of newer locomotives in its assessment.

[99] The Agency notes that CP’s claims with respect to the mitigation measures implemented were inconsistent within its own submissions. In particular, the Agency notes that:

  • The Meeting Minutes reflect CP’s statement that it had stopped storing idling locomotives on the wye track after the consolidation in 2009, whereas in the Jade Report filed with CP’s response to the Show Cause Decision, it is noted that CP will stop storing idling locomotives on the wye track once the new turntable is installed in March or April 2013.
  • In its September 19, 2011 submission, CP indicated that inbound load testing was relocated to the outskirts of the community to minimize inbound load testing near Inglewood residences. However, information provided by CP at the site visit and subsequently reflected in the Meeting Minutes indicates that inbound load testing occurred on Tracks 1 to 10. Later, as part of its response to the Show Cause Decision, CP filed the Jade Report which assumed that in 2011 and 2013, all inbound load testing was conducted on Tracks East 1 to 4, in proximity to the LRC building. In the same response, CP included its LTCR, which documented engine 8529 inbound load testing on Track East 7 for 1.5 hours from 1:00 a.m. to 2:30 a.m. on January 9, 2013.

[100] The evidence that the above measures have been implemented is inconclusive.

[101] CP has discussed, in its response to the Show Cause Decision, mitigation measures that could be implemented in the future, including its proposal to minimize the staging of fully-serviced locomotives on Tracks 9 and 10 to situations when the tracks at the Crew Booking-in Office are at capacity. However, CP has not provided evidence showing that such measures have been implemented. Accordingly, the Agency concludes that all measures implemented by CP have been taken into account by the Agency. Potential noise mitigating measures not yet implemented are more properly examined in the assessment of corrective measures.

CONCLUSION ON SUBSTANTIAL INTERFERENCE

[102] In light of the Agency’s conclusion on each of the six claims in CP’s response to the Show Cause Decision, the Agency finds that CP has failed to demonstrate that the Agency should not adopt, as final findings, its preliminary findings set out in the Show Cause Decision with respect to substantial interference. 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.

[103] In addition, in the Jade Report, Jade indicated that idling locomotives may be an LFN generator, which allows noise to penetrate in lightweight residential buildings with ease. The Agency is of the opinion that residences with a clear line of sight to the idling locomotives, without what shielding benefit the LRC or nearby industrial buildings might provide, would experience higher sound levels than were claimed in the Jade Report.

[104] The Agency is of the opinion that the inability for typical residential dwellings to attenuate LFN means that the residents of those dwellings cannot escape the noise within the confines of their own homes and, as a result, they are exposed to this disturbing noise during all hours of the day and night. These elevated LFN levels may cause elements of a building to vibrate. The complainants have provided evidence of similar experiences of windows and dishes rattling as a result of activities at the LRC.

[105] In light of these facts, the Agency is of the opinion that the high noise levels during the night, coupled with the presence of LFN and noise-induced rattles, result in a high degree of annoyance and sleep disturbance to the complainants.

[106] For these reasons, the Agency concludes that the cumulative effect of the noise caused by the increased load testing and idling operations resulting from CP’s repair activities since the consolidation of the repair activities at the LRC constitutes substantial interference in the ordinary comfort or convenience of living of an average person.

CONCLUSION ON REASONABLENESS

[107] In its response, CP argued that the noise is not unreasonable on the basis of its claim that the noise levels have decreased over time and that all most effective and reasonable mitigation measures have already been implemented.

[108] The Agency has already concluded that it cannot rely on the Jade Report modelled sound levels in making its determination in this complaint. In the Show Cause Decision, the Agency noted that 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. CP has not filed any evidence to indicate that before implementing its decision to create a major repair facility at the Alyth Yard and increase the volume of its repair operations, CP gave any consideration to the impact this would have on the community. CP has not submitted any evidence that the increase in repair activities was based on level of service or an operational requirement. Furthermore, in response to the Show Cause Decision, CP has not submitted any further evidence that the Agency should consider in assessing reasonableness.

[109] Section 95.1 of the CTA recognizes an ongoing obligation on the part of a railway company to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, operational requirements and the area where the operation takes place. CP has been aware of the problems experienced by the Inglewood community since 2011 and many meetings and negotiations have taken place, including interventions by the City of Calgary and a comprehensive jointly-funded noise study from which CP ultimately withdrew. Finally, it culminated in this proceeding. CP has the onus to demonstrate that it was in compliance with section 95.1, either because the claims made against it are unfounded or that it has done what it reasonably can do to mitigate the noise and vibration it subjected the residents to, taking into account the criteria in section 95.1.

[110] The Agency made a preliminary finding that the increased noise caused by the load testing and idling activities at the Alyth Yard since 2009 is unreasonable and issued the Show Cause Decision which gave CP an additional opportunity to demonstrate that it was meeting its obligations. The Agency later extended the deadline to respond at CP’s request. CP has failed to make its case and has presented a defence based on challenging the preliminary conclusions/findings made by the Agency using a modelling tool developed in consultation with the Railway Association of Canada. Since the initiation of this complaint, the residents have been subjected to the noise of idling and load testing associated with the LRC.

[111] In light of this, the Agency adopts, as final findings, its preliminary finding set out in the Show Cause Decision. That is, 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 is unreasonable. Therefore, the Agency concludes that CP has not met its obligation under section 95.1 of the CTA.

CORRECTIVE MEASURES

[112] CP was also directed 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, but without limitation, measures restricting volume of operations, location of operations, operating hours, operating procedures, and noise barriers.

[113] Section 95.3 of the CTA states that the Agency may order the railway company to undertake any changes in its railway construction or operation that the Agency considers reasonable to ensure compliance with that section.

[114] Substantial interference in this case results from the railway activities performed in proximity to the complainants’ residences during the night.

[115] The Agency acknowledges that CP is willing to only use Tracks West 9 and 10 for idling locomotives when the tracks near the Crew Booking-in Office are at capacity. However, the Agency finds that the maximum reduction associated with this operational change, which the Jade Report claims is up to 2 dBA, would be insufficient to reduce the overall noise from all LRC operations to a reasonable level at night.

[116] CP submits that the current LRC volumes have reduced since 2011, and are near the 2007 pre‑consolidation numbers. However, CP has not filed any commitment to these volumes of repair activities on a continued basis in the future. The evidence demonstrates that the volumes fluctuated significantly between 2007 and 2013. The fact that the repair volumes presented by CP were low between November 28, 2012 and January 9, 2013 is not an indicator that they will remain at that level in the future. For this reason, the Agency finds that corrective measures are warranted to ensure compliance with section 95.1 of the CTA.

[117] The Agency considers that a change in time of operations and proximity of the operations to the complainants’ residences must be implemented to ensure that CP complies with its obligation under section 95.1 of the CTA.

[118] The Agency finds it reasonable that CP should not 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 (item P on the Aerial map appended to the Meeting Minutes) as the Agency finds that this will provide sufficient distance to minimize noise impacts from locomotive operations. This area corresponds to the location where CP currently conducts load testing when there is congestion near the LRC building.

[119] Given the Agency’s findings with respect to the cessation of load testing and idling activities in proximity to the LRC at night, it is unnecessary to examine other corrective measures at this time.

ORDER

[120] The Agency orders CP, by no later than August 15, 2013, to not 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.

Member(s)

J. Mark MacKeigan
Raymon J. Kaduck
Date modified: