Decision No. 676-R-2002
December 18, 2002
File No. R 8050/358-S002.31
On June 19, 2002, the City of Windsor (hereinafter the City), filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
On August 16, 2002, the Canadian National Railway Company (hereinafter CN) filed its answer to the application with the Agency. On August 30, 2002, the City filed its reply to the answer.
Following a review of the parties' submissions, the Agency requested further information with respect to the environmental assessment provided by the City as well as railway operations and road traffic in the area. Responses to these interrogatories were received from the City on September 26, 2002 and from CN on September 27, 2002. On December 4, 2002, the Agency provided an opportunity for the parties to comment on a submission from Transport Canada.
Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until December 18, 2002.
Pursuant to subsection 18(1) of the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (hereinafter the CEAA), the project has been screened and a screening report has been prepared.
The Agency is of the opinion that public participation in the screening of the project under subsection 18(3) of the CEAA is not required in the circumstances.
After taking into consideration the screening report, the Agency has determined that the project is not likely to cause significant adverse environmental effects.
In 1999, the City retained Dillon Consulting Limited to undertake an environmental assessment of Walker Road. Included in the assessment was the need to determine a means to connect Walker Road to the Walker Industrial Park (hereinafter the industrial park). Several locations were considered; each required a crossing of the Pelton Spur. A proposed two-lane road link at Foster Avenue was selected. Foster Avenue, which runs perpendicular to Walker Road, would be extended in an easterly direction crossing CN's Pelton Spur at or near a right angle and continuing easterly to connect with the existing Saint Etienne Boulevard in the industrial park. Foster Avenue is signalized at Walker Road and its easterly limit currently terminates past the intersection of Riberdy Street, about 500 feet west of CN's track.
The new road link would be approximately 1000 feet in length and would be located on vacant city property west of the crossing and a City-owned right of way east of the crossing.
At the present time, the primary access to the industrial park is from the north at the E.C. Row Expressway and Central Avenue, and a secondary more remote access is via Jefferson Boulevard, at the eastern limit of the industrial park.
The CN Pelton Spur is a connection track that runs between the headblock with the Caso Subdivision (at mileage 219.10) and mileage 108.1 of the Canadian Pacific Railway Company's (hereinafter CP) Windsor Subdivision. The Spur is 3.2 miles long and was purchased by CN in 1991 from the Lake Erie and Detroit River Railway Company. CN trains enter the city on the Caso Subdivision and proceed to the Van de Water and Electric Yards. Trains are assembled in the Yard and then proceed out on to the Caso Subdivision to Pelton Junction and on to the Pelton Spur. On the Pelton Spur, CN trains travelling north are required to stop and await clearance from the CP dispatcher before accessing the CP trackage. Trains then proceed eastbound on the CP Windsor Subdivision mainline track for approximately 500 feet to reach CN's Little Yard. Cars are added to the train at this location before exiting the city by way of CN's Chrysler Spur and the Chatham Subdivision.
POSITIONS OF THE PARTIES
In its application, the City submits that it has not been able to reach an agreement with CN respecting the proposed crossing. The City maintains that the extension of Foster Avenue and crossing of CN's Pelton Spur is required as the current access points to the industrial park were not designed to accommodate the current traffic and, more importantly, do not provide the necessary access for emergency vehicles, particularly to the western end of the industrial park.
The City indicates that, in accordance with the Province of Ontario's Class Environmental Assessment for Municipal Road Projects, which requires that the public and review agencies are provided notification of projects and afforded the opportunity to provide comments, CN was well advised of the project on numerous occasions, but submitted no response. The City states that it commenced the design of the Foster Avenue extension in September 2001, and coordinated with UMA Engineering Ltd., who represented CN on the project. On January 15, 2002, CN changed its position and advised that a level crossing of the Pelton Spur would not be acceptable to CN. The City maintains that it made attempts to meet with CN to assess the options to provide access to the industrial park from Walker Road. At a meeting held on May 8, 2002, CN advised that its objection is based on CN's operations and indicated that a clear distance must be maintained on the Pelton Spur to accommodate trains 8,200 feet in length.
The City disputes the arguments set out by CN on May 8,2002 for several other reasons:
- CN's current operating scenario is not efficient and negatively impacts the City at many important crossing locations. CN's co-ordination and co-operation with CP for routing between Electric Yard and Little Yard would eliminate the need for operations on the Pelton Spur;
- CN operates very few trains on the Pelton Spur and does not require the clear distance required for trains 8,200 feet in length;
- CN's operating plans do not account for impacts to vehicular operation on the City's roadways or its need to access the industrial park;
- the City is very supportive of rail rationalization in the Windsor-Essex area and believes that the railway companies may be equally supportive.
The City estimates that approximately 4,980 vehicles of mixed types would use the new roadway and road crossing daily, mostly during daytime hours, and this traffic would be existing road traffic diverted from the existing entrance to the industrial park at Central Avenue. It adds that in the event of a crossing blockage, traffic would queue along Foster Avenue on either side of the crossing, or reroute to the Central Avenue access.
In addressing the matter of emergency response, the City submitted a letter from the City of Windsor's Fire & Rescue Services that notes that the present average response time from dispatch to the west end of the industrial park using the most direct route is seven minutes, which should be considered unacceptable in the community for any emergency. The letter states that if the Deziel/Rhodes intersection were obstructed by traffic or an accident, this response time could be longer due to the lack of a secondary access to properties in the western portion of the industrial park. Fire & Rescue Services indicates that the ability to respond to emergencies would significantly improve with the proposed extension of Foster Avenue.
In its reply, CN requests that the application be denied. CN claims that the construction of a level crossing at this location would pose a threat to safe railway operations as trains waiting to access the CP junction would frequently block the crossing. CN notes that the City has not yet issued the required notice of proposed work under the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (hereinafter the Railway Safety Act) and CN intends to object to this notice on grounds of safety.
CN submits that it generally operates two to three trains per day over the Pelton Spur, which are normally between 5,000 to 8,000 feet in length. CN experiences significant delays, up to one-and-a-half hours, while awaiting clearance to access CP track. CN argues that it needs a clear distance of 8,200 feet in order to remain competitive and meet changing customer demands. CN adds that trains lengths of 6,700 feet (average length in the year 2000) would block the crossing, as the distance from the hold location at the junction with CP's Windsor Subdivision and the proposed Foster Avenue crossing is approximately 5,000 feet. CN notes that as of early October, there have been 48 trains over 5,000 feet in length this year.
CN submits that its current train operations on the Pelton Spur are designated as either transfer moves or through moves. Transfer moves bring traffic daily from Van de Water Yard to Little Yard and return, and normally operate between 1 p.m. and 3 p.m., returning between 2 p.m. and 4 p.m. The through train, which is usually longer, carries outbound traffic from Windsor daily, and stops at the junction at approximately 4:30 a.m. to 5:30 a.m.
CN submits that rail operations on the Pelton Spur have existed for years (as the railway line was established in the late 1800's), whereas the industrial park was much more recently constructed and is accessible from at least two separate locations that would also serve emergency vehicles. CN maintains that because of train blockage, a crossing at this location would not be adequate to meet the needs of the City.
CN points out that the Pelton Spur is of key importance to its operations because it is its only access between the Van de Water and Little Yards. CN notes that significant modifications and upgrades were undertaken a few years ago to improve overall operations between the Yards, as well as in Little Yard, and the daily service to local customers. CN adds that based on current operations, the presence of active customers on the Pelton Spur and growth potential, the Spur is and will continue to be an integral rail connection within the Windsor area. CN maintains that because of automotive customers, train traffic fluctuations can be high in the Windsor area and placing restrictions on CN's operating efficiencies would limit its ability to compete and satisfy common carrier obligations.
CN indicates that it considered spotting trains south of the proposed crossing to wait for the signal at the junction. This, however, would affect the two existing crossings at Airport Road at mileage 1.55 and Division Road at mileage 1.23. CN maintains that the track at the proposed crossing is the only location in Windsor where its trains can stop without blocking a crossing, except within its yards.
In response to the City's suggestion that co-ordination and co-operation with CP would eliminate the need for operations on the Pelton Spur, CN notes that at a meeting with the City on May 8, 2002, CN advised that it would not be adverse to exploring different operating possibilities with CP. However, CN has heard nothing further on the issue.
The City's reply
The City submits that when the industrial park was established, the Pelton Spur was a little used line, as much of the Lake Erie & Detroit River Railway Company line had been abandoned or removed. In March 2000, CN advised the City of its intention to operate a single daily train to exit the city through Little Yard and as a result this operation now runs over the Pelton Spur.
The City maintains that access between Van de Water and Little Yards should be via CP trackage, and not via the Pelton Spur. Alternatively, CN could exit the city by way of the Caso Subdivision, as it previously did.
The City submits that the distance between CP's mainline and the proposed crossing is 5,540 feet, which should be sufficient for CN's operations, to accommodate the train lengths actually being assembled by CN. Due to the lengths and low frequency of trains, the City believes that the crossing could, at the very worst, be available for vehicular use 19.5 hours in any 24-hour period. The City sees this as preferable to not having a crossing at this location.
In response to CN's comments that there are already two accesses to the industrial park, the City notes that CP's mainline crosses Jefferson Avenue at grade, and if the Rhodes Drive/Deziel Drive intersection were blocked, the western part of the industrial park would be inaccessible. The City has indicated that it is prepared to pursue technical solutions or other mitigating measures with CN that would allow alternate plans should the crossing be blocked, such as the existing notification system between CN and the City's Emergency Response Group for other locations and suggests similar technical solutions could be extended to motorists.
In its comments in response to Transport Canada's memo of November 1,2002, CN points out that Transport Canada refers to potential safety concerns given the probability of crossing blockage in excess of five minutes at the proposed crossing location.
In its response to Transport Canada's comments, the City of Windsor reiterates that the frequency of blockages would be minimal and states that the queuing of traffic on Deziel Drive, Rhodes Drive and Central Avenue is a greater concern than the limited queuing that might occur with a blockage at the proposed Foster Avenue extension. As evidenced with the delays experienced during the snowfall of the 2002/2003 winter season, an alternative access at Foster Avenue would significantly improve traffic flow and emergency access.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
Subsection 101(3) of the CTA provides that if a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection 101(1) the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specify who shall maintain the crossing.
The Agency is aware that both parties have indicated a willingness to cooperate with each other. The City has indicated that it has initiated meetings with the railway companies that operate in Windsor to review rail rationalization, to the benefit of all parties and CN has noted its desire to participate in those meetings. Although the Agency will rule on this matter at this time, the Agency encourages the parties to continue negotiating in an attempt to resolve the situation in a manner that will benefit all parties.
Agency staff conducted a site meeting on October 3, 2002 to clarify railway operations, review safety and environmental concerns, and open discussion between the parties. The Agency notes that at the meeting, in response to CN's suggestion that it would be prepared to discuss construction of an "emergency only" crossing, the City advised that this would not address its needs, and that a permanent public crossing is required.
The Agency is aware that the interaction of a railway and the roadway at the crossing will impact the operations of both the users of the railway and the users of the roadway. This is an inevitable consequence of the coexistence of various modes of transport, of the proximity of various types of businesses with varying requirements and of the proximity of businesses such as railway companies with residential and industrial areas. In this case, the Agency is being asked to assess the requirements for the crossing and the resulting impacts on operations to determine if the proposed crossing is suitable.
With respect to the impact on roadway operations, the Agency accepts the City's argument that the new Foster Avenue extension is required to improve access to this portion of the industrial park. The Agency also notes that there are no existing operations to be impacted on the Foster Avenue extension yet to be built. All parties acknowledge that the future traffic on the Foster Avenue extension will be delayed any time the crossing is occupied by a train. The Agency notes that the City, being the party responsible for the construction of necessary roadways, has examined its alternatives and is prepared to accept that the construction of Foster Avenue extension across the Pelton Spur will result in delays for the future users of this portion of Foster Avenue.
Furthermore, in response to CN's comment that because of potential blockage, a crossing at this location would not be adequate to meet the needs of the City, the Agency notes that the City is well aware that the proposed road crossing at this location could be blocked because of railway operations. The Agency notes that the City considers this situation preferable to not having a crossing at this location. The Agency is of the opinion that what is adequate for the City's needs is a matter to be determined by the City. The City is accepting the consequences of its proposal designed to meet its self-determined needs.
The Agency must also consider CN's argument that the project would create problems for railway operations on the Pelton Spur. The Agency notes that these problems are compounded because each train travelling north on the Pelton Spur to access CN's Little Yard and its Chatham Subdivision has to cross CP's main line and must stop and await clearance from the CP train dispatcher before proceeding. Further, all railway customers on the Pelton Spur are located immediately north of the proposed crossing. In reviewing CN's operations, the Agency notes that the conflict between vehicular traffic and the potential blockage of the crossing could occur in three ways: by the passage of a shorter train; by a long train stopped at the junction waiting for a clearance from CP; and, by a train serving the customers on the Pelton Spur.
The Agency is of the opinion that all train movements, with one exception, will move through a properly protected crossing at Foster Avenue with no significant impact on railway operations. The one exception would be when a northbound train is long enough to block the Foster Avenue crossing while waiting for clearance from the CP dispatcher to access the Windsor Subdivision. The Agency notes that there are procedures in place within the Canadian Rail Operating Rules whenever such circumstances occur and further notes CN's willingness to explore different operating options with CP that may facilitate operations on the Pelton Spur. The Agency anticipates that CN and CP will cooperate to consider alternatives including the co-ordination of schedules that would greatly reduce the possibility of blocking the crossing while waiting for clearance. In addition, the City has indicated that it is prepared to pursue technical solutions or other mitigating measures with CN that would allow alternate plans should the crossing be blocked, particularly for emergency vehicles. The Agency is of the opinion that, although there may be some impact on CN's operations, it is not significant enough to deny the application for the Foster Avenue extension across the Pelton Spur.
Finally, the Agency notes that in its submission, CN maintained that the proposed Foster Avenue crossing will pose a threat to safe railway operations. It must be noted that matters concerning railway safety are governed by the Railway Safety Act, and fall under the jurisdiction of Transport Canada. Therefore, any Agency decision does not relieve the parties of their obligations under the Railway Safety Act and the requirements of Transport Canada. As the City indicated that it intends to issue a notice as required under section 8 of the Railway Safety Act upon receipt of the Agency's decision, CN will have the opportunity to raise its safety concerns under that process.
In light of the foregoing, the Agency authorizes the City of Windsor to construct a level crossing to carry the Foster Avenue Extension across the track of the Canadian National Railway Company at mileage 2.31 of the Pelton Spur. Any authority granted by the Agency does not relieve the City and/or CN of their obligations under the Railway Safety Act and the requirements of Transport Canada.