Decision No. 66-R-2014

February 24, 2014

APPLICATION by the Canadian Pacific Railway Company pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No.: 
R8030/14-00763

APPLICATION

[1] On January 30, 2014, the Canadian Pacific Railway Company (CP), pursuant to section 32 of the Canada Transportation Act (CTA), requested the Canadian Transportation Agency (Agency) to review and vary Decision No. 301-R-2013.

BACKGROUND

[2] On October, 5, 2012, the Agency issued LET-R-148-2012">Decision No. LET-R-148-2012 (Show Cause Decision), directing 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…and that 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 [Locomotive Repair Centre] since 2009 is unreasonable”. 

[3] The Agency also directed CP “to show cause as to the reasons why the Agency should not require CP to implement corrective measures at the source or mitigation to prevent propagation of the noise to the parties affected, including, but without limitation, measures restricting volume of operations, location of operations, operating hours, operating procedures, and noise barriers”. In addition, the Agency provided CP until November 5, 2012 to file its response to the Show Cause Decision.

[4] In the Show Cause Decision, the Agency identified the subject of the complaint as the noise and vibration caused by CP’s LRC operations located in its Alyth Yard, specifically, the noise caused by idling locomotives at any location on the LRC tracks and the noise caused by inbound and outbound load testing outdoors. Furthermore, the Agency noted that “no allegation or evidence has been presented with respect to other potential sources of noise or activities taking place at CP’s Alyth Yard.

[5] On November 1, 2012, the Agency, in response to a request filed by CP, issued Decision No. LET-157-R-2012 granting CP an extension until February 5, 2013 to file its response to the Show Cause Decision.

[6] On August 1, 2012, the Agency issued Decision No. 301-R-2013 (Final Decision), in which the Agency noted that in response to the Show Cause Decision “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…” With respect to the claims, the Agency found that the evidence supported its preliminary finding, or the claim was not relevant or unfounded. The Agency therefore concluded that CP had breached its obligation under section 95.1 of the CTA as it relates to load testing and idling activities performed in relation to repair activities at the LRC.

[7] In the Final Decision, the Agency did not accept CP’s claim that “that all most effective and reasonable mitigation measures have already been implemented” and subsequently ordered 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 meters southeast of the Rail Car Repair facility”. In this Decision, this location will be referred to as Tracks N-18/N-19 as this is how CP refers to it in its application.

ISSUE

[8] Has there been a change in the facts or circumstances since the issuance of Decision No. 301‑R‑2013, which warrants a variance of that Decision?

LEGISLATIVE CONTEXT

[9] Pursuant to section 32 of the CTA:

The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[10] The review process contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency’s jurisdiction under this section is limited and only arises if there has been a change in the facts or circumstances pertaining to a particular decision since its issuance. Nor is this an appeal mechanism. Parties wishing to appeal an Agency decision may proceed before the Federal Court of Appeal under section 41 of the CTA.

[11] In Decision No. 488-C-A-2010, the Agency set out the test that it applies when considering an application under section 32 of the CTA. The Agency must first determine whether there has been a change in the facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in the facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

[12] The wording of section 32 must generally be construed to include only facts or circumstances that were not in existence at the time of the original hearing or were undiscoverable by the applicant through exercise of due diligence at the time of the initial hearing.

[13] The burden of proof rests on the applicant requesting the review to provide the Agency with some substance and explanation demonstrating that the alleged change in the facts or circumstances has arisen since the decision. The applicant must also explain how the alleged change affects the outcome of the matter.

SUBMISSION

[14] CP states that since the Final Decision was issued, CP has completed a comprehensive safety risk assessment (Risk Assessment) regarding the change in location of the LRC activities ordered by the Agency. The Risk Assessment was conducted by Dillon Consulting Limited and includes supporting information, reference documents and conclusions on CP’s risks with respect to safety, environment, noise and operations. As part of the supporting documents, CP filed an Acoustic Assessment Report prepared by Jade Acoustics Inc.

[15] The Risk Assessment considered two locations within the Alyth Yard Tracks N-18/N-19 and “the Ramps”, an area west of the LRC on Tracks 9 and 10.

[16] CP submits that paragraph 2(e) of the Railway Safety Management System Regulations, SOR/2001-37 (Regulations) requires a complete risk assessment whenever there is a significant change to railway operations. CP claims that in the context of the Final Decision, “no alternative site had ever been contemplated or considered during the course of the proceedings and no risk, safety assessment or alternative noise assessment had been conducted by the Agency or CP”.

[17] According to CP, it could not have anticipated the relocation of the LRC activities at night to another location, such as Tracks N-18/N-19, without the completion of a comprehensive safety/risk assessment, which is required pursuant to the Regulations.

[18] CP submits that the Risk Assessment and its findings constitute new facts and circumstances since the issuance of the Final Decision.

Tracks N-18/N-19

[19] CP submits that the Risk Assessment identified issues related to safety, noise, the environment and operations associated with LRC load testing and idling activities at night at Tracks N‑18/N‑19; specifically:

  • are within the dangerous goods evacuation zone;
  • are within the "Black Zones", which are safety clearance zones;
  • will not allow supervisors to provide safety checks;
  • do not have sufficient overhead lighting and safety facilities for night work;
  • will increase sound levels at other receptors;
  • do not have environmental facilities; and
  • impose additional and inefficient locomotive movements across the Yard.

[20] CP submits that the conclusions of the Risk Assessment related to Tracks N-18/N-19 “prohibit that location from use as a locomotive repair and maintenance facility”.

The Ramps

[21] CP points out that the Ramps is an area approximately 350 m west of the LRC located on Tracks 9 and 10. It is west of the Blackfoot Trail overpass and the adjacent area is zoned “industrial general”. CP states that although the adjacent land is more compatible with railway operations, the Risk Assessment identified issues related to safety, noise, the environment and operations. CP submits that the Risk Assessment raises new facts about this third site within Alyth Yard that in some respects has positive considerations but in other respects raises concerns. CP states that “[m]oving the Night LRC Activities from the LRC (which was designed for such activities), to the Ramps (which was not), does increase the risk profile for the LRC Activities”.

[22] CP assessed the Ramps based on the same four criteria: safety, noise, environmental and operations. The Risk Assessment indicates that:

[I]f the LRC Activities are moved to the Ramps, the noise levels will decrease for certain receptors (i.e. those who were parties to the Complaint), however, noise will be introduced to new receptors:

  • Mills Estate Community – is located due north of Alyth Yard and Blackfoot Trail. The increase in noise level from the LRC Activities at the Ramps is estimated at +6 to +16 dB.
  • Ramsay Community – is located northwest of Alyth Yard. The increase in noise level for LRC Activities at the Ramps s estimated to be +8 to +10 dB.

[23] The independent noise expert concluded that the increase in sound levels to new communities from the relocated LRC Activities would be similar to the magnitude in sound level experienced by the complainants at the time of the Final Decision, and there would not be a net benefit to the relocation of LRC Activities.

ANALYSIS AND FINDINGS

Has there been a change in the facts or circumstances pertaining to the Final Decision since it issued?

[24] In the Show Cause Decision, CP was directed to show cause “as to the reasons why the Agency should not require CP to implement corrective measures at the source or mitigation to prevent propagation of the noise to the parties affected, including, but without limitation, measures restricting volume of operations, location of operations, operating hours, operating procedures, and noise barriers.” Based on the wording of the Show Cause Decision, CP had to have known that the Agency was considering corrective measures that could entail CP relocating its LRC load testing and idling operations.  However, while the Agency recognized that CP had performed occasional inbound load testing on Tracks N-18/N-19, the Agency did not identify this specific location or any other specific location as a site that CP could opt to use for load testing and idling operations related to the LRC repair and maintenance activities conducted at night.

[25] As such, the Agency agrees with CP that prior to the Final Decision, CP could not have anticipated the need for it to risk assess Tracks N-18/N-19 or the Ramps as potential sites where load testing and idling operations related to the LRC repair and maintenance activities could be authorized at night. Based on the above, the Agency concludes that the Risk Assessment filed by CP in this proceeding contains new factual information related to safety, noise, the environment and operations at Tracks N-18/N-19 and at the Ramps that were undiscoverable by CP through the exercise of due diligence at the time of the initial consideration of the case. The Agency finds that the Risk Assessment constitutes a change in the facts and circumstances pertaining to the Final Decision. Therefore, the Agency will next consider whether the Risk Assessment contains information that is sufficient to warrant a review or variance of the Decision.

Is the change in facts and circumstances sufficient to warrant a review or variance of the Final Decision?

[26] In the Final Decision, the Agency found 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” and that “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.” The Agency then ordered CP to not conduct any load testing or idling operations at night unless it conducts these operations at a minimum distance of 400 metres southeast of the Rail Car Repair facility, that is, Tracks N-18/N-19.

[27] In its application, CP did not specify how the Final Decision should be varied. CP only requested that the Agency “take into account the facts in the Risk Assessment in reviewing the Decision regarding where the LRC activities can take place in Alyth Yard”. The Agency will therefore examine whether a variance is warranted having regard to the information relating to the two sites examined in the Risk Assessment. 

Tracks N-18/N-19

[28] The Risk Assessment produced by CP indicates that, based on the configuration of the Yard and CP’s operations at the time the Risk Assessment was conducted, Tracks N-18/N-19 cannot, for reasons related to safety, be used for night time LRC load testing and idling activities. This reason, alone, is sufficient for the Agency to conclude, as suggested by CP, that Tracks N‑18/N‑19 is not a suitable location for load testing and idling operations related to the LRC repair and maintenance activities at night. As such, the Agency need notexamine the other noise, environmental or operational issues raised by CP. 

[29] GGiven that the Final Decision authorized CP to conduct load testing and idling operations at night at a location now found to be unsuitable based on the current operations and configuration of the Yard, the Agency finds that a variance of the Final Decision is warranted to remove from its order the reference to Tracks N-18/ N-19 identified in the order as an area located “at a minimum distance of 400 metres southeast of the Rail Car Repair facility”.

[30] It is appropriate to clarify at this point, however, that the Agency did not, as claimed by CP, order in the Final Decision, that CP “move the Night LRC Activities to a new location, namely Track N-18/N-19”. Rather, the Agency, in the Final Decision, ordered these activities to stop altogether at the LRC during the night while authorizing them at Tracks N‑18/N-19 only.

The Ramps

[31] In the Risk Assessment, the Ramps was also examined as a potential alternative location where load testing and idling operations related to the LRC repair and maintenance activities could be authorized at night.

[32] It appears from CP’s application that even though CP concluded that there are environmental, operational and safety issues associated with this location, the LRC load testing and idling activities could, with or without the implementation of certain measures, be conducted at this location at night.

[33] However, CP made it clear that if the Ramps are used, other communities would be subject to sound levels similar to the levels experienced by the complainants and found to be unreasonable in the Final Decision and that “there would be no net benefit to the relocation of the LRC Activities”.

[34] In the Final Decision, the Agency determined that a change in time of operations and proximity of the operations to the complainants’ residences had to be implemented to ensure that CP complies with its obligation under section 95.1 of the CTA. The Agency found that this objective would be met by ordering CP “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”, as this would provide sufficient distance to minimize noise impacts from load testing and idling operations related to the LRC repair and maintenance activities.

[35] The Agency finds that to authorize load testing and idling operations related to the LRC repair and maintenance activities at night at the Ramps, a change in operations that simply moves the noise impact of CP’s LRC operations from one community to another, would do nothing to ensure that CP complies with its noise and vibration obligation under section 95.1 of the CTA.

[36] For this reason, the Agency finds that the Final Decision cannot be varied to authorize the Ramps as a location that can be used by CP to conduct load testing and idling operations related to the LRC repair and maintenance activities at night. The information found in the Risk Assessment that relates to the suitability of the Ramps as a potential site for load testing and idling activities at night does not warrant a variance of the Final Decision.

[37] In its application, CP submits that noise at the Alyth Yard cannot be avoided because locomotives need to idle and be load tested as a requirement of the warranty repair and maintenance process. The Agency is fully aware of these requirements. The Agency is not asking CP to disregard them; however, it is requiring CP to conduct these activities at night at a location so as not to cause unreasonable noise to surrounding communities.

[38] In this Decision, the Agency considered two specific locations where CP could potentially be authorized to conduct load testing and idling operations related to the LRC repair and maintenance activities at night. Tracks N-18/N-19 was identified by the Agency in the Final Decision, but was selected on the basis of the evidence provided by CP that this location had occasionally been used for these activities. The Ramps was a site that CP proposed in its current application. CP is in the best position to identify where, within the Yard, or elsewhere on its network, load testing and idling operations related to the LRC repair and maintenance activities could potentially be conducted at night, having regards to safety, noise and vibration, operations, the environment and other considerations.

[39] As such, the Agency is prepared to consider, on request by CP, other proposals of locations where load testing and idling operations related to the LRC repair and maintenance activities could be authorized at night. Until such time as such location(s) is/are authorized by the Agency, CP must comply with the Final Decision, as varied, and not conduct load testing and idling operations related to the LRC repair and maintenance activities during the period between 11:00 p.m. and 7:00 a.m. It is CP’s responsibility to determine the best means to operate its railway so as to ensure that no locomotives need to be load tested or left idling, in the Alyth Yard during the prohibited hours. 

VARIANCE

[40] The Agency varies 301-R-2013">Decision No. 301-R-2013 by replacing paragraph 120 with the following:

[41] The Agency orders CP to not conduct any load testing and idling operations related to the LRC repair and maintenance activities at night (between 11:00 p.m. and 7:00 a.m.) in the Alyth Yard.

COMPLIANCE

[42] In addition, CP is to submit a report, within 30 business days, describing how CP is complying and will continue to comply with Decision No. 301-R-2013

[43] Should CP wish to resume conducting load testing and idling operations related to the LRC activities at the Alyth Yard at night, CP should file an application describing how the relocated activities, having regards to safety, operations and the environment, will not cause unreasonable noise and vibration impacting on communities in the area(s) where they take place.

OTHER MATTERS 

[44] On September 13, 2013, the Agency, pursuant to section 26 of the CTA, issued Order No. 2013‑R-301 (Cease and Desist Order), leave to appeal dismissed Docket No. 13-A-32 dated November 29, 2013, requiring CP to immediately cease and desist from not complying with the order made in the Final Decision.

[45] As the order made in the Final Decision has been varied by this Decision, the Cease and Desist Order is now moot and the Agency therefore rescinds that Order.

Member(s)

Geoffrey C. Hare
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