Decision No. 629-R-1998

December 18, 1998

December 18, 1998

IN THE MATTER OF an application by the Canadian National Railway Company pursuant to sections 100 and 101 of the Canada Transportation Act, S.C., 1996, c. 10, to reconstruct the road crossing at St. Albert Trail and mileage 5.09 Edson Subdivision, in the city of Edmonton, in the province of Alberta, as shown on Drawing No. AA660-5.09-1.1 revised June 5, 1998, on file with the Canadian Transportation Agency.

File No. R 8050/421-005.09


APPLICATION

The Canadian National Railway Company (hereinafter CN) has filed an application with the Canadian Transportation Agency (hereinafter the Agency) as set out in the title. The application was received on June 18, 1998 and was complete and ready for processing on June 22, 1998.

In its original application, CN requested that an apportionment of costs be assigned to both the City of Edmonton (hereinafter the City) and the City of St. Albert. On July 14, 1998, CN withdrew the portion of its application relating to the City of St. Albert and advised that it seeks no relief against the City of St. Albert.

On July 21, 1998, the Agency issued interim Order No. 1998-R-420 pursuant to subsection 28(2) of the Canada Transportation Act (hereinafter the CTA) authorizing CN, pursuant to subsection 101(3) of the CTA, to reconstruct the road crossing (subway) and reserving the apportionment of costs for further study and consideration. This Decision deals with the apportionment of costs.

FACTS

Highway No. 2 (St. Albert Trail) is a major north/south highway within the city of Edmonton and beyond constructed in 1965. It is a six-lane divided arterial roadway, three in each direction, with sidewalks on both sides at the existing subway structure. The posted speed limit on St. Albert Trail at the subject location is 60 km/hr. The 1997 seasonally adjusted 2-way combined traffic volume is 43,300 vehicles per day.

The Edson Subdivision is CN's main line of railway between Edmonton and Jasper, Alberta and carries heavy freight as well as VIA Rail Canada Inc. passenger trains. In 1997, rail traffic consisted, on average, of 27.7 trains per day plus switching movements.

At the time of the original construction, it was agreed by the City and by CN that a rail carrying structure would be the most economical alternative. The existing four span structure, consisting of steel beams and concrete ballast deck spans on concrete piers and abutments, was designed by CN and constructed using Cooper's E70 loading criteria. It carries four tracks. It was constructed for the City pursuant to Board of Transport Commissioners for Canada (hereinafter the Board) Order No. 116961 dated March 12, 1965. The plans for the original structure were approved by the City, CN and the Board. Further, this Board Order apportioned the cost of construction of the subway 80 percent or $500,000 out of The Railway Grade Crossing Fund; 5 percent of such cost not to exceed a maximum of $31,250 by CN and the balance by the City. The cost of maintenance was apportioned in accordance with subsection 10(2) of General Order E-5, i.e. all costs of maintenance of the substructure and superstructure to be paid by the railway company and all other costs of maintenance, including the cost of maintaining the approaches, road surface, sidewalks, drainage and lighting to be paid by the highway authority.

CSA-S1-1965 was used for the design of the structure which was the industry standard in use at the time for railway bridges. This design incorporated standard connection details recommended by the steel fabrication industry and other expert bodies at the time. Industry standard for the design life of a bridge structure is at least 50 to 60 years. It was not up until 1970, that it was discovered, through research, that these details were inadequate.

Detailed inspections and analyses of the structure over recent years have revealed the presence of some 300 fatigue cracks in the girder webs. The factors which led to the deterioration of the structure are, among others, poor design and detailing of the arrangement and connection of the diaphragms to the girders, the frequency of train loading and damage caused by vehicles striking the structure. The current actual loading on the superstructure is approximately equivalent to Cooper's E60 loading. Over the period of time from 1965 to present, various maintenance measures were used and repairs to the structure were carried out in an effort to curtail the spreading of the cracks such as drilling holes at the ends of each of the cracks. The maintenance program has failed to arrest the crack propagation. The superstructure has reached the end of its viable life and must be replaced to maintain an adequate safety margin of design capacity.

To meet high rail traffic density and loadings, present day design criteria will be used, incorporating rigid fatigue controls with Cooper's E90 loading. The new superstructure consists of 4 steel beam spans and concrete ballast deck. The vertical clearance between the top of roadway and the bottom of the new structure is increased from 4.875 to 5.030 metres over the southbound lanes and from 4.925 to 5.090 metres over the northbound lanes. There are no changes to the bridge length, width or horizontal clearances for road vehicles.

CN and the City have failed to reach agreement on the issues related to the reconstruction of this road crossing, primarily in the area of cost apportionment.

POSITIONS OF THE PARTIES

CN states that further repairs would be extensive and that it would be difficult to ensure that such repairs are effective. Given the high level of railway and vehicular traffic at the road crossing, CN has determined that the most cost-effective and practical method of dealing with this safety issue is by replacing the superstructure. CN considers that the proposed work entails significant design changes to the superstructure such that the proposed work constitutes a reconstruction, the costs of which are to be apportioned between the parties pursuant to the relevant provision of the Railway Safety Act.

CN's cost estimate dated May 21, 1998 for the proposed reconstruction was prepared using the latest Schedule "A" Directive as issued by the Agency. The total cost estimate is $3,146,000 of which the most significant components are the material cost of the structural steel bridge spans ($1,220,000) and the labour cost of the construction contract ($1,160,000).

CN's contribution to the original total estimated construction cost in 1965 was 5 percent of $1,095,900 to a maximum of $31,250 or 2.85 percent of the total estimated construction cost. The balance of the costs, over 97 percent, was contributed by the City and by federal funding.

CN recognizes that the federal government no longer maintains the Railway Grade Crossing Fund and is prepared to more than triple its contribution to the proposed reconstruction costs. CN proposes that the Agency apportion 15 percent of the reconstruction costs to the railway company, not to exceed $471,900; and that the balance of the reconstruction costs, consistent with Order No. 116961, be borne and paid by the City. In the circumstances of this road crossing, the City must assume the additional financial burden created by the absence of federal funding. It would not be equitable or reasonable, having regard to the history of the structure or to the benefits derived by motorists at the road crossing, to require CN to make up for the absence of federal funding. This submission is consistent with subsection 16(4) of the Railway Safety Act, particularly with regard to the statutory test of "relative benefit" and to "other relevant factors" such as the history of the creation and the original funding of this road crossing.

The City advises that it is not prepared to cost share in the reconstruction of the railway's structure. The City submits that the cost apportionment formula used in 1965 should not be applicable to this project as the situation has changed completely. The City had contributed to the original structure adequately (6-lane divided arterial roadway) for future traffic requirements based on accurate traffic projections. CN has failed to arrest the crack problems and now requires a new structure with increased loading capacity.

The City states that it was not consulted during any of the conceptual, preliminary, and detailed design phases of this project. In addition, the City of St. Albert was deleted as a respondent to CN's request for cost sharing. In the City's view, these actions demonstrate that the road authority is not the beneficiary of the railway structure reconstruction.

CN maintains, however, that the subway was built at the request of the City to accommodate motorists. The only significant change since that time is the increase in highway traffic volume and its continued existence remains primarily for the benefit of the travelling public. On the basis of benefit to be derived by the parties, CN states that a road authority contribution of 85 percent is warranted.

CN does not accept, for the purpose of this application, that the Guidelines on Apportionment of Costs of Grade Separations (hereinafter the Guidelines) are consistent with subsection 16(4) of the Railway Safety Act or, if consistent, that the Guidelines encompass the type of situation now before the Agency, namely the reconstruction of a road crossing that has reached the end of its viable life.

In the alternative, if the Agency were to find that the Guidelines do apply to this application, which CN disagrees with, CN submits that the City as proponent of the original road crossing, and as a contributor of the largest portion of the funds (after receiving funding from the Railway Grade Crossing Fund), has an established responsibility for this road crossing. Likewise, CN having responsibility for less than 5 percent of the actual construction costs and responsibility for maintenance costs also has an established responsibility towards this road crossing.

In this regard, the City notes that the Guidelines state that "Where an existing grade separation is to be reconstructed for the purposes of the party having exclusive responsibility for that grade separation, the costs of reconstruction and maintenance of the basic grade separation are normally paid in full by that party." The City asserts that CN is exclusively responsible for the railway structure and is also the sole beneficiary of the project. Thus, CN should pay for the reconstruction of the superstructure in full. Over the years, the roadway and its infrastructure at this location have been maintained and rehabilitated by the City at no cost to CN.

CN maintains that, insofar as benefits are concerned, the City was the proponent of the original road crossing. Further, it is CN's position that the subway was constructed because of, and to benefit the traffic volume of vehicles travelling on the highway between the city of Edmonton and the town of St. Albert and that the greatest benefit from the subway accrues to the motorists of the city of Edmonton. This was reflected in the cost apportionment detailed in the original 1965 Order. CN submits, as the proposed reconstruction does not add additional highway or railway capacity, the existence of the structure remains primarily for the benefit of the travelling public. It is also CN's view that the road authority will also gain benefit from the increased vertical clearances. This is offset by the provision of present day Cooper's E90 loading for railway operations. It is CN's position that the need for this project is predominantly due to conditions under the control of the road authority and that the costs of reconstruction should be apportioned 85 percent to the road authority and the balance to the railway company in accordance with the Guidelines.

The City agrees that the reconstruction does not add additional highway capacity, however, the City disagrees with CN's position that the reconstruction does not add railway capacity. The new structure will be designed with Cooper's E90 loading criteria and will be able to handle a loading increase from its current actual Cooper's E60 loading and increased traffic volume on the structure, as well as mitigating its liability and safety concerns at the road crossing. The City submits that with the new structure, CN's maintenance costs will be significantly decreased, the new structure having a life expectancy of between 50 to 60 years. It is the City's position that CN is the sole beneficiary of the project. The City maintains that it will not gain any benefit from the reconstruction of the railway structure, including the installation of a protection beam for the northbound lane, as the horizontal clearances for road vehicles remain unchanged and the increase in vertical clearances are very minimal.

Insofar as the City's allegation that it does not gain benefit from the reconstruction of the railway structure as the increased clearances are still less than those which would be used for new bridges, CN indicates that it has done everything under its control to provide increased vertical clearance in the reconstructed design and has in fact provided increased clearance by using shallower but heavier beam sections to raise the base of the rail profile on the bridge and its approaches. The proposed clearances are an improvement over those provided in the original construction and will reduce the probability of the bridge being struck by highway vehicles. Further, the installation of overhead protection beams should also improve this situation. It is CN's position that this must be considered a benefit to the road authority.

Furthermore, it is CN's contention that the greatest benefit from the subway accrues to the motorists travelling on the St. Albert Trail. Since 1965, traffic volumes have continued to grow on the highway; the current vehicle count of 43,000 represents an increase of 430 percent, a rate ten times greater than that for railway traffic growth (42 percent). If not for the road crossing, 43,000 vehicles per day would be subject to stopping at the crossing when there is train activity.

With respect to maintenance costs, CN accepts that the maintenance of the proposed reconstructed superstructure remains the responsibility of the railway company.

AGENCY ANALYSIS AND FINDINGS

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

Subsection 101(4) of the Canada Transportation Act provides that section 16 of the Railway Safety Act, R.S.C., 1985, ch. 32 (4th Supp.) applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing and maintaining a road crossing. In cases where the parties involved cannot agree on the apportionment of the liability between them to meet the construction, alteration, operational or maintenance costs for the road crossing, the provisions of section 16 of the Railway Safety Act enable the proposing party or each other person who stands to benefit from the completion of the work to refer the matter to the Agency for a determination.

With respect to road crossings, every case is assessed on its own merits and the Agency bases its decisions on the circumstances of a particular road crossing project.

The Agency notes that Order No. 116961 established that while both parties have a responsibility for the construction cost of the existing subway, CN is the party responsible for the maintenance cost of the superstructure.

The Agency notes that CN is the proponent of this project and finds that the proposed work entails significant design changes, which are required for safety reasons and to re-establish and improve the original design capacity and not to provide for additional tracks or highway lanes. The Agency also notes that CN has undertaken all reasonable efforts to maintain this road crossing over the years and has closely monitored the condition of the structure.

However, the Agency notes that the superstructure has deteriorated before the end of its design life due to what is now recognized as poor detailings in use by the industry at the time the existing subway was constructed. The Agency recognizes that further repairs would be extensive to meet CN's continuing obligations to maintain the superstructure as set out in Order No. 116961 and that it is difficult to ensure that such repairs would be effective. Therefore, the Agency is satisfied that ongoing maintenance of the existing superstructure is not a viable alternative.

The Agency is of the opinion that this work is mainly required by CN for safety reasons, to meet present day operational requirements and to provide for increased volumes and train loadings. The Agency finds that in this case where both parties have an established responsibility for a road crossing but the proposed work is due to the needs of one of the parties, that party should bear the greater part of the construction costs.

In its determination of the cost apportionment for the proposed work at this road crossing, the Agency must also consider the benefits derived by each party and any other relevant factors.

The Agency notes that CN specifically justifies this superstructure replacement as the most cost-effective alternative to ongoing maintenance. In this regard, the Agency is of the opinion that CN is the major beneficiary of the work as it will reduce the level of future maintenance that would have been required for the existing structure. The Agency also notes that the new structure will result in a new design which will accommodate increased loadings and volumes. In addition, the proposed detailings will provide for a safer structure. While some benefits will also accrue to the City, such as a safer structure, the installation of protection beams and enhanced but substandard provincial vertical clearances, thereby reducing vehicular collisions, the Agency assesses them as marginal benefits. Therefore, the Agency determines that CN shall pay 95 percent of the construction costs and that the City shall pay the balance.

With respect to the responsibility for the costs of maintaining the proposed reconstructed superstructure, the Agency notes that CN has advised that it will continue to accept its responsibility for the future maintenance of the road crossing. Accordingly, all costs of maintaining the substructure and the superstructure of the road crossing shall be paid by the railway company and all other costs of maintaining the road crossing, including the costs of maintaining the highway approaches, highway surface, sidewalks, highway drainage and lighting shall be paid by the City.

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