Decision No. 462-R-2010
November 4, 2010
COMPLAINT by Eddy Aceti et al pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
File No. R8030/V3-1
Introduction and issue
 Eddy Aceti, Scott Campbell, Dave Petricca and Luisa Bove Morgani (complainants) filed a complaint with the Canadian Transportation Agency (Agency) pursuant to section 95.3 of the Canada Transportation Act (CTA) against the Canadian National Railway Company (CN) regarding noise arising from CN's operations at the MacMillan Yard, in the city of Vaughan, in the province of Ontario.
 The issue to be determined by the Agency is whether CN is meeting its obligations under section 95.1 of the CTA to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the local area. If not, the Agency must determine what changes, if any, CN must make to its operations to ensure compliance with its noise and vibration obligations.
 The Agency finds that CN has met its obligations to cause only such noise and vibration as is reasonable. Therefore, no changes to CN's operations at the MacMillan Yard will be ordered.
 Mr. Aceti filed a railway noise complaint against CN's operations at the MacMillan Yard. During the pleadings, Scott Campbell, Dave Petricca and Luisa Bove Morgani, represented by Mr. Aceti, were also added as complainants to this complaint proceeding.
 After the parties to the complaint were given a full opportunity to make their representations in writing, the Agency determined, in Decision No. LET-R-95-2010, that a site visit was warranted in order for the Agency to have a full understanding of the issues and circumstances of the case.
 A site visit was held on June 7 and 8, 2010. The objectives of the site visit were to observe general noise (ambient and railway) at the residences of the group represented by Mr. Aceti; observe railway operations along the pullback track and the railway noise it may cause; and observe hump operations in the MacMillan Yard and the railway noise it may cause.
 During the pleadings, the Agency solicited comments from the City of Vaughan, but no comments were received.
 The MacMillan Yard, located at the junction of CN's York and Halton Subdivisions, is CN's largest rail classification yard in Canada. The MacMillan Yard operates on a 24-hour basis, 7 days a week and processes approximately 800,000 rail cars per year. Approximately 2,000 cars are processed daily. Activities at the MacMillan Yard consist of hump operations, which include a pullback track that is not necessarily in use 24 hours per day.
 Classification operations involve locomotives pulling a string of cars along the pullback track in order to then push them to the crest of the hump where they are decoupled and rolled one at a time downhill in the classification yard, then sorted by destination onto one of 77 destination tracks. A belt pack operator stands near the hump, matches the car number to the display screen and then cuts a single car by pulling the uncoupling lever to release the car over to the designated track. Movements of locomotives are remotely controlled by a belt pack unit, which is a computer-based locomotive remote control system that provides the operator control over the train speed to perform switching activities. The yard master, located in the tower, controls the computer screen and lines up the proper switch for the cars.
 Dedicated locomotive units operate on the pullback track that has been specifically designed for pullback track operations. These modified yard locomotives allow for belt pack remote control operations and have lower horsepower than main line locomotives. The maximum speed is 15 mph on the pullback track. CN Policy Settings for the belt pack operations are stop (0 mph), hump (2 mph), fast hump (2.5 mph) and other settings (4, 8 and 15 mph). Yard locomotives are mounted with blower type engines and have an exhaust manifold and exhaust stack. The power used on the pullback track consists of two locomotives with two boosters. A booster only has electric traction motors which are powered by the diesel engine of the locomotive to which it is connected.
 Computer-controlled mechanical retarders (metal brake shoes mounted to the rail applying friction) slow the cars to a suitable rolling speed for coupling. The weather conditions, the weight of the car and the distance that the car must travel are taken into consideration to determine the suitable speed of the rolling car. The hump and main retarders are located approximately 2.1 km south of Mr. Aceti's property.
 Maintenance work on the pullback track and the retarder is performed at the beginning of the week. Peak volume days for incoming cars are Thursday to Sunday. Maintenance activities are performed during the daytime. Occasionally maintenance work is done on the pullback track between two train movements, when required.
 The pullback track is located in a cut below the general surface of the surrounding land, on CN's property. An earth berm (6-metre high) has been constructed immediately adjacent to and north of the cut. The combination of the cut and the earth berm is equivalent to approximately an 11-metre high deep cut. The berm is not on CN's property.
Positions of the parties
1) Residential development
 CN states that in 1964, it relocated its freight activity from downtown Toronto to an unpopulated rural area in the township of Vaughan (now the city of Vaughan). CN submits that at the time of construction, it received commitments from surrounding communities that these facilities would be protected from encroachment. Urban development and pressure from growing surrounding population have since created incompatible land uses.
 CN explains that at the planning and construction stage of the MacMillan Yard, it consulted with the community. As a result, CN's initial straight pullback track design was modified so the track would now curve and avoid getting too close to town.
 Concerning the residential development that includes the complainants' properties, CN indicates that it participated in hearings conducted by the Ontario Municipal Board (OMB). The OMB authorized the residential development but ordered the implementation of measures designed to address noise and vibration issues associated with CN's operations at the MacMillan Yard. These measures were required to be incorporated into a developer's subdivision agreement. Subsequent to the OMB decision, the Development Agreement was entered into by the municipality of the area and the residential housing developer. The Development Agreement contained noise issue-related conditions including the requirement to include in all offers of sale and purchase or lease and to register on the title or include in the lease for each dwelling a notice. This notice was to advise prospective purchasers or tenants of the existence of the railway company's operated right-of-way, of the possibility of alterations to or an expansion of these facilities in the future, of the possibility that the railway company's operations may affect the living environment of the residents despite the inclusion of noise and vibration attenuation measures in the design of the subdivision and individual units, and that the railway company would not be responsible for complaints arising from its use of its facilities and/or arising from its operations. The Development Agreement was later registered on the property titles, including those of the complainants.
 CN submits that the residents had or should have had full knowledge of the existence of the railway operations and the potential impact that it could have on their environment and that they nonetheless willingly purchased their properties. CN points out that the developer built houses in the area in question that included the implementation of noise mitigation measures, which were deemed satisfactory to the local municipal government. CN maintains that all noise mitigation measures have been implemented and that if other measures were required, they would be the responsibility of parties other than CN.
 Mr. Aceti states that he purchased his property in 2003, which is located about 400 m north of the pullback track. Mr. Aceti adds that the other residents he represents confirmed that they moved into their residences between 1997 and 2007. The complainants assert that if CN did not want to accommodate residents surrounding the MacMillan Yard, CN should have acquired the land surrounding the line when it bought the yard from the government.
 The complainants acknowledge that the warning clause tied to the land titles refers to the Development Agreement and warnings relating to the railway operations at the MacMillan Yard are contained. The complainants state, however, that "misplaced warnings and forgotten efforts for obtaining executed waivers do nothing to actually reduce noise in the physical world". The complainants add that CN must abide by section 95.1 of the CTA which supersedes the warning on the land titles.
 The complainants state that CN has not met the conditions set out in section 95.1 of the CTA and that railway operations are causing noise that is not reasonable. The complainants submit that due to its location at the MacMillan Yard since 1964, CN erroneously considers that it is entitled to operate unfettered by regulation. The complainants refer to the noise from parked and/or idling trains, shunting and squealing from CN's operations at the MacMillan Yard.
 CN contends that the complainants have not provided any evidence suggesting that the noise associated with railway activities at the MacMillan Yard is unreasonable. CN adds that the complainants have provided very few details as to the specific type of noise at issue.
 CN has submitted a document entitled Industrial Noise Impact Assessment for a Residential Seniors Development at 2500 Rutherford Road, City of Vaughan, Ontario prepared by HGC Engineering dated March 17, 1999 (Noise Study) which indicates that the current berm is adequate. In the conclusion of the Noise Study, the following statement is made: "The sound attenuation afforded by the proposed 6-metre high berm along the pullback right-of-way will effectively mitigate the sound from the portion of the pullback track north of Rutherford Road." CN adds that the berm referred to is the same berm that extends north and parallels the complainants' residential development. CN argues that in the absence of any other evidence provided by the complainants to this case, the Noise Study is a critical element to be considered by the Agency.
 The complainants submit that the Noise Study is not applicable to the complaint as it refers to a specific location on Rutherford Road and that the environment is classified as "Urban Acoustic" and should not be applied to their residential area. The complainants state that, in any event, the recommendations from the Noise Study have not been implemented, e.g. no pines have been planted on top of the berm and no follow up assessment has been conducted. The complainants mention that the lack of compliance with the Noise Study recommendations lead them to believe that the sound barrier in place is not sufficient for reducing the noise. Furthermore, the complainants claim that the berm height is half the recommended height.
a) idling noise
 The complainants maintain that CN parks trains in the area of Rutherford and Melville Roads with their train engines running, causing an excessive amount of noise for hours at a time, and very late in the evening. According to Mr. Aceti, during many evenings in the summer, windows have to be kept closed as the noise was keeping residents awake until 3 a.m. Noise could still be heard inside the complainants' homes even with the windows closed.
 The complainants are of the view that trains should not be parked in residential areas and left idling for long periods of time, and suggest limiting use of this track, or refraining from idling for long periods of time.
 CN states that trains do not idle at this location, and that the noise actually heard by Mr. Aceti is from trains being slowly (5 mph) pulled and pushed on the pullback track.
b) shunting noise
 The complainants submit that CN is shunting trains on the pullback track. They suggest that CN should refrain from using the pullback track to the south side of Rutherford Road and that it should consider using another rail line within the MacMillan Yard to shunt trains.
 CN asserts that there is no shunting taking place at this location, and suggests that what Mr. Aceti hears is the stretching and compressing of cars when the locomotives stop at the end of the pullback track, which is a typical noise for railway operations. CN states that the pullback track is essential to its yard operations and that any restrictions to train movements would severely impact its railway operations.
c) squealing noise
 The complainants complain about squealing brakes.
 According to CN, the noise referred to by Mr. Aceti is from the retarders in the MacMillan Yard about 2.1 km away. CN adds that this is also normal typical noise associated with hump operations, and there is little that can be done to reduce the retarder noises. The usual remedy for rail squeal is to install lubricators, however, CN maintains that if lubrication were to be applied to the wheels, the cars would not be slowed down to the required speed for coupling after passing through the retarders.
d) operating noise
 The complainants submit that CN has not invested money in sound reduction research, break-pad research, shrubbery or tree planting, berm building or otherwise. The complainants further submit that CN should be mandated to implement additional noise mitigations measures or improve the berm in place. The complainants add that CN is making an unreasonable and excessive amount of noise partly because it is operating old, loud and outdated locomotives without having constructed sufficient noise barriers. The complainants suggest that CN should update its equipment to new equipment which uses newer technology.
 According to CN, it participates in activities related to noise dispute issues. On the other hand, the complainants maintain that CN has not directly taken any substantial actions to limit the noise to a reasonable level considering that the MacMillan Yard is surrounded by hundreds if not thousands of residences.
 CN maintains that the complainants have not defined how improvements to the berm would address the noise issue, if at all.
 CN submits that the MacMillan Yard is a state of the art facility, that the track is in excellent condition and that the locomotives used on the pullback track and humps are the best that can be used for this type of operations.
 CN maintains that it participates in research and development activities for noise abatement and, that the imposition of more stringent standards, above industry and regulatory requirements, would have to be operationally feasible and compatible with other North American railways.
 CN states that it has taken reasonable measures to address the issue of noise and that the complainants are unreasonable in their request to move its operations or make major changes to the railway plant. CN further states that the scope of the remedy sought by the complainants is not reasonable, and adds that restricting the use of the MacMillan Yard would ultimately harm CN's ability to meet its service obligations to its customers.
3) Site visit
 The Agency convened a site visit to assess the nature of the operations at the pullback track, as well as the area where CN's operations take place in relation to the location of the complainants' residences. The site visit was held on June 7 and 8, 2010.
 The objectives of the site visit were to observe general noise (ambient and railway) at the residences of the group represented by Mr. Aceti; to observe railway operations along the pullback track and the railway noise it may cause; and to observe hump operations in the MacMillan Yard and the railway noise it may cause.
 Following the site visit, minutes were prepared by Agency staff and circulated for comments to the parties.
 The minutes contain the following observations made at the site visit:
- From Mr. Aceti's residence no noticeable train or train operation-related noise was heard over the general ambient noise.
- Urban ambient noise heard consisted of lawn mower, traffic, aircraft flying and general noise. Noise was also heard from construction/paving activities, Canada's Wonderland and the nearby school.
- From the Melville Avenue overpass: engine noise from the train pulling uphill towards Jane Street at full throttle was heard.
- From Larissa Crescent: faint hum could be heard although the source of the noise was undetermined, possibly from idling locomotives or general noise.
- From the pullback track: barely any noise was heard from the compression of the cars and no noise was heard from wheel squeal on the curve. The only noise heard was from the regular operation of the engines and the rolling wheels on rails.
- From the MacMillan Yard: as the cars were travelling through the master retarder, no excessive noise from retarder pressure on the car wheels was heard.
 The Agency notes that the overall result of the site visit was that no apparent railway noise over the general ambient noise could be heard clearly. Train noise was difficult to detect from the ambient noise even at night time.
 In his comments on the minutes, Mr. Aceti indicated that he had perceived the noise level at Larissa Crescent to be equivalent to that heard at the Melville Avenue overpass. However, Mr. Aceti acknowledged that the train was not loud enough to cover the very little ambient noise observed during the visit. Mr. Aceti indicated that he believed the noise level observed during the visit did not reflect what can be commonly heard by the residents.
 Upon its review, the Agency decided to place the minutes and related comments on the record of the complaint.
Analysis and findings
 The amendments made to the CTA in 2007 included the addition of provisions relating to noise and vibration caused by railway companies when constructing and operating railways. Specifically, section 95.1 of the CTA imposes an obligation on railway companies to cause only such noise and vibration as is reasonable in the circumstances. Section 95.3 provides the Agency with a complaint adjudication function, which empowers the Agency to order the railway company to undertake any changes to its railway construction or operations to ensure continued compliance with that company's noise and vibration obligations under section 95.1 of the CTA.
 Railway operations, by their nature, cause noise and vibration. The level of noise and vibration observed will vary based on a number of factors, one significant factor being the physical proximity of the residences to the railway.
 The Agency acknowledges that Mr. Aceti's house is located approximately 400 m from the railway property and that the complainant whose residence is the closest to the pullback track is located 120 m from the railway property. As such, considering the proximity of the complainants' residences to the MacMillan Yard, one can expect train operation noise to be heard from the complainants' residences.
 However, this, alone, is not sufficient for the Agency to impose noise-related corrective measures on CN. Pursuant to section 95.3 of the CTA, the Agency may only order a railway carrier to make changes to its operations if it considers the noise and vibration levels not reasonable in the circumstances.
 In this case, the complainants did not file any log of incidents, readings, studies, expert evidence or recording to substantiate that the noise and noise level that can be heard from their respective properties are unreasonable. Further, no such evidence was filed despite the fact that in Decision No. LET-R-175-2009 the Agency indicated to parties that relevant noise measurements or updated studies conducted in the affected area would provide better factual information to complete information on file. The record indicates that CN offered to share the cost of a noise study with the complainants and the City of Vaughan. However, the City of Vaughan did not reply, and the complainants indicated that any costs related to a noise study should be incurred by CN. Consequently, no study was completed.
 CN did file a Noise Study. However, the Agency notes that the Noise Study was completed 11 years ago. The Agency is of the opinion that the potential evolution in rail/road traffic in the residences' area since the noise study was conducted could result in a variation of the ambient noise and railway noise. In addition, the Agency notes that the Noise Study deals with noise at a location in close proximity to the MacMillan Yard but not in close proximity to the complainants' residences. Consequently, the Agency finds that the Noise Study filed by CN is not relevant to the determination of the merit of this complaint.
 Therefore, no qualitative or quantitative data have been submitted showing the extent of the railway operation noise that can be heard from the complainants' residences. In the absence of any such data, direct noise level observation could have substantiated the complainants' allegations. The Agency did convene a site visit for this purpose. However, Agency staff who were present at the complainants' residences at various times of the day on June 7 and 8, 2010 did not observe much noise, as the minutes of the site visit show. Overall, no significant noise could be heard from the complainants' properties, and any noise resulting from squealing, shunting or idling of train could not be identified.
 For this reason, the Agency finds that there is no evidentiary basis for the conclusion that noise caused by the railway operations at the MacMillan Yard in the vicinity of the complainants' residences is unreasonable for the purposes of section 95.1 of the CTA. Therefore, no changes in CN's operations are required.
 As a result, the Agency need not determine the effect of the registration of the Development Agreement on property titles. However, the Agency is of the opinion that any warning clauses attached to property titles related to train operation noise does not have the effect of relieving CN from its general and ongoing obligations under section 95.1 of the CTA to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area.
 In light of the above and based on the results of the site visit, the Agency finds that there is no evidence to conclude that CN has not met its obligations under section 95.1 of the CTA to cause only such noise as is reasonable.
 Therefore, the Agency dismisses the complaint.
- J. Mark MacKeigan
- Jean-Denis Pelletier, P. Eng.