Decision No. 69-R-2014

February 27, 2014

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

File No.: 
R8030/12-02997

COMPLAINT

[1] Michel Girard filed a complaint with the Canadian Transportation Agency (Agency) concerning noise and vibration along the Canadian Pacific Railway Company’s (CP) right of way at or around mileage 20 of the Winchester Subdivision near his residence in Vaudreuil-Dorion, Quebec. In his complaint, Mr. Girard also raises safety concerns regarding the speed of trains and the transportation of hazardous materials and heavy cargo. 

[2] Mr. Girard states that the noise and vibration from passing trains are affecting the quality of his sleep and impacting his hearing, causing lamps and other items to fall from tables and shelves, disturbing his telephone conversations and the enjoyment of his property, and shaking the foundation and various elements inside his residence. 

PRELIMINARY MATTERS

[3] In his complaint, Mr. Girard raises concerns for the safety of residents living along the railway and for those using a children’s playground next to his residence which also backs onto the rail line.

[4] Mr. Girard requests that train speeds be reduced “dramatically to as slow as possible through his residential area” and that trains carrying hazardous material or heavy cargo be rerouted to avoid a disaster in the event of a derailment.

[5] Mr. Girard also claims that air pollution from the operations on the railway affects the enjoyment of his property.

[6] As railway safety and complaints related to air pollution are not within the Agency’s mandate, and outside the scope of section 95.3 of the Canada Transportation Act (CTA), the Agency will not consider these matters in this Decision.

ISSUES

[7] Do the noise and vibration caused by CP’s operations constitute substantial interference?

[8] If so, is CP meeting its obligation 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?

BACKGROUND

[9] Mr. Girard moved into a two‑storey house, which is part of a new development constructed adjacent to the Winchester Subdivision, in 2009. The house backs onto the CP Winchester Subdivision line and is located approximately 50 metres from the rail line. The developer did not install a berm or noise wall between the houses and the railway right of way.

[10] The Winchester Subdivision line forms part of CP’s main east-west rail corridor connecting the Greater Montréal Region with southern Ontario and western Canada and has been in operation since the 1880’s. It is a two-track main line carrying heavy trains with pass-by rail traffic only. At this location, the Winchester Subdivision is a continuously-welded rail tangent track without switches, turnouts, or joint bars.

POSITIONS OF THE PARTIES

Mr. Girard

[11] Mr. Girard states that an average of 15 trains pass by his residence every day, the majority during the night. He submitted a log of train passages from July 27 to August 7, 2011 to substantiate this statement along with 29 video recordings to support his claim.

[12] Mr. Girard claims that when he decided to purchase his house, he was advised that approximately two to three trains per day would pass behind his residence. He was also ensured that other houses were constructed by railway tracks in other projects and were structurally sound.

[13] Mr. Girard claims that the noise and vibration from the trains affects the quality of his sleep. He claims that one cannot sleep or talk on the telephone while trains are passing if the windows are open. Mr. Girard also references to possible hearing loss.

[14] Mr. Girard provided a copy of a resolution of the Vaudreuil-Dorion Municipal Council (Resolution No. 13-03-260) dated March 18, 2013 in which the City requests Transport Canada to reduce the speed of freight trains on the CP line for the residents’ enjoyment of their property and a copy of the Mayor’s subsequent letter to the federal Minister of Transport.

[15] According to Mr. Girard, the vibration from pass-by trains shakes household objects to the point that his television had to be mounted on a bracket. The vibration is said to be felt throughout the house and Mr. Girard is concerned with its structural integrity and foundation. The railway noise and vibration prevent Mr. Girard from having overnight guests. To demonstrate the extent of the vibration within his residence, Mr. Girard filed video recordings of a small figurine on a desk vibrating during the passage of trains.

CP

[16] CP states that the Winchester Subdivision is a key component of its network linking Montréal directly to the ports of Vancouver, New York, and Philadelphia. It forms part of CP’s main east‑west railway corridor directly linking the Greater Montréal Region with southern Ontario and western Canada, allowing CP to transport freight south into the major Detroit and Chicago hubs. It services CP’s Lachine Intermodal Facility, one of the company’s largest intermodal facilities, which carries consumer goods destined for the Greater Montréal Region and eastern Ontario and the Maritimes markets. The Lachine Intermodal Facility also provides interprovincial container transportation to Canadian domestic markets.

[17] CP maintains that the Winchester Subdivision, which links the Port of Montréal to North American markets, is well maintained, which limits the noise generated. It points out that the only source of railway noise is from trains passing by Mr. Girard’s residence as the track is continuously welded and tangent in this area, without curves, switches, turnouts, joint bars or crossings that could increase noise at this location. Furthermore, as the Winchester Subdivision is double tracked, CP’s trains need not idle or be staged in the vicinity of Mr. Girard’s residence. CP points out that at mileage 20, the track is designed for a speed of 60 mph and it replaced rail ties on both tracks, thereby reducing rail pounding of the rail cars travelling over the tracks. CP indicates that the locomotives and rail cars are all regularly maintained and operated in accordance with industry standards which ensures, among other things, minimum pass-by noise arising from transit power, wheel/rail interface and rail joint/switch/turnout impacts. CP adds that in accordance with recent industry standards, it has replaced the cast iron brakes with composite brakes that cause less noise.

[18] CP points out that operations have not changed at this location. CP also states that the Winchester Subdivision has been double tracked since 1912 which reflects the high level of traffic on the line. CP does not dispute Mr. Girard’s estimate of the number of trains per day but points out that according to Mr. Girard’s log, train passages are not disproportionately scheduled at night.

[19] CP states that the developer/Municipality did not include any mitigation measures, such as a berm or noise wall, to limit the exposure to railway noise when constructing the development where Mr. Girard’s residence is located and Mr. Girard does not appear to have implemented any mitigation measures of his own.

[20] CP points out that Mr. Girard has not submitted information on ambient noise and it suggests that a number of roads and highways in the area may be contributing to ambient noise. Specifically, CP refers to truck traffic on Henry-Ford Street and traffic on Highways 340 and 540.

[21] CP asserts that it cannot reroute trains in order to reduce the number of trains passing by Mr. Girard’s residence because the Winchester Subdivision is its only route west to Toronto and Vancouver. CP does not have alternate routes around Vaudreuil-Dorion to move freight. CP disputes the accuracy of the noise levels Mr. Girard submitted and claims that these are well in excess of the maximum sound levels the equipment can produce. Using the Agency’s Railway Noise Measurement and Reporting Methodology (Methodology), CP estimates the noise to be in the 58 to 61 dBA range at a distance of 50 metres from the source for 150 rail cars powered by three locomotives travelling at 100 km/h. CP adds 7 dBA for night-time noise, bringing the noise level to 65-68 dBA and then reduces these values by a factor of 27 dBA to account for closed windows. CP matinains that the noise levels do not constitute substantial interference during the day or night.

[22] CP claims that using methods outlined in the U.S. Federal Transit Administration’s (FTA) Transit Noise and Vibration Impact Assessment (May 2006), at a distance of 175 feet (the approximate distance CP estimates between the rail line and Mr. Girard’s residence) the vibration would be approximately 72/73 VdB, which it considers within the acceptable residential day/night level and less than 78 VbD representing the “feelable vibration” level. CP states that the level of activities on the Winchester Subdivision is determined by its common carrier obligations pursuant to section 113 of the CTA and driven by shippers’ needs for expeditious delivery of goods.

[23] CP states that the number of trains travelling through Vaudreuil-Dorion is strictly a function of the amount of traffic that is tendered by shippers, and it contends that CP cannot delay or cease moving freight on the Winchester Subdivision. CP cites Agency Decision No. 221-R-2010 to argue that obligations pursuant to sections 95.1 to 95.3 of the CTA must be balanced with the national transportation policy in section 5 of the CTA which sets out the objective of having a “competitive, economic and efficient national transportation system ... to serve the needs of its users, advance the well-being of Canadians and enable competitiveness and economic growth...”

[24] Referring to the same Decision, CP argues that it would be inappropriate to reduce train speeds as the Agency found in that Decision that reducing train speeds to 30 km/h would not be an appropriate corrective measure as it was in the public interest that the Agence Métropolitaine de Transport maintain its level of service to ensure a continued efficient public transportation service to the population of the Greater Montréal Region.

[25] CP submits that as it cannot reroute its traffic at this location, Mr. Girard’s request for rerouting traffic is inappropriate because it amounts to the same remedy that was sought by the complainant in Decision No. 454-R-2008 in which the Agency considered that limiting the high volume of traffic amounted to forcing CP to curtail its activities on the Winchester Subdivision.

[26] CP points out that Mr. Girard purchased a house constructed only 50 metres from the railway right of way, well short of the recommended set back, and that CP was not contacted by the developer or any buyers with respect to this development. CP refers to Decision No. 424‑R‑2012, and states that the Proximity Guidelines and Best Practices published by the Federation of Canadian Municipalities and the Railway Association of Canada establish that “300 metres is the recommended minimum noise influence area to be considered when undertaking noise studies for main line corridors. Residential developments within the influence area should include noise and vibration studies to assess the suitability of the proposed use and to recommend mitigation requirements.”

ANALYSIS AND FINDINGS

[27] The initial step in the analysis of noise and vibration complaints is to determine the existence of noise and/or vibration and whether it constitutes substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.

[28] To make a determination on the existence of noise and/or vibration that may constitute substantial interference for Mr. Girard, the Agency will consider the elements outlined below. These elements are outlined in the Agency’s Guidelines for the Resolution of Complaints concerning Railway Noise and Vibration (Guidelines) and in Decision No. 35-R-2012.

[29] These elements include the:

  • characteristics and magnitude of the noise or vibration (such as the level and type of noise [impulse or constant], the time of day, the duration, and the frequency of occurrence);
  • relevant noise or vibration measurements or studies conducted in the area affected;
  • presence of ambient noise other than that of railway operations, such as highway noise;
  • impact of the noise or vibration disturbance on the persons affected; and,
  • relevant standards to assess the significance of the effects of noise and vibration levels.

[30] If the Agency finds that the noise and vibration are not causing substantial interference, there is no need to pursue the analysis further.

Substantial Interference

Impact of the noise and vibration on Mr. Girard

[31] Mr. Girard claims that noise and vibration impacts from the passing trains cause sleep disturbance and potential hearing loss, disrupt telephone conversations, and cause the structure of his residence and items in his residence to shake. Mr. Girard is concerned with the impact of the vibration on the structure of his residence; however, no evidence of structural damage was filed.

Railway operations

[32] Mr. Girard identifies noise and vibration from passing freight trains as the main issue in his complaint.

[33] Mr. Girard purchased his house in 2009. The railway corridor was established in the 1880’s. According to CP, “Since 1887, the Winchester Subdivision has always been an important corridor with high volumes of traffic. While train numbers fluctuate from day to day due to the volumes of traffic tendered by shippers, it is not a corridor that has materially changed its level of operation.” The Winchester Subdivision operates on a 24 hours a day, 7 days per week basis.

[34] The Agency notes that the log Mr. Girard submitted consists of 12 entries from July 27 to August 7, 2011. The entries describe the dates and times of the occurrences and the number of occurrences on that day. Mr. Girard calculates an average of 15 trains per day. CP accepts Mr. Girard’s estimate as it is within CP’s range of average trains per day. However, CP points out that according to Mr. Girard’s log, train passages are not disproportionately scheduled at night.

Characteristics and magnitude of the noise and vibration

[35] Mr. Girard’s residence is located approximately 50 metres from CP’s rail line. Mr. Girard submitted 29 video recordings to demonstratequantitatively and qualitativelythe noise and vibration impacts. The Agency reviewed the video recordings and notes the following:

 

  • Video recordings in *.avi format, without audio component, recorded in July and August 2011, (25 files) record passing freight trains behind Mr. Girard’s residence, vibrating objects inside his residence, and noise level readings on a sound level meter outside the residence. Using two cameras, recordings were synchronized and time stamped to demonstrate the correlation between the passing trains and resultant noise and vibration. The sound level meter shown in the video recording, positioned along the rear facade of Mr. Girard’s residence, recorded instantaneous sound levels as high as 105.6 dBC.
  • The video recordings in *.avi format, with audio component, taken in March and April 2012, (4 files) record passing freight trains. According to the file names, the video recordings were taken at the property line next to CP’s right of way. The sound level meter, shown in the video recording and positioned along the right of way, captured instantaneous sound levels as high as 104.6 dBC.

[36] Using the Agency’s Methodology, CP estimates a sound level during the night from 23:00 to 07:00 to be up to 68 dBA. CP also states that based on the Methodology, the estimated sound level inside Mr. Girard’s residence is reduced by 27 dB with the windows closed. The Agency notes that the 27 dB is not absolute and the Methodology cautions its use as it “[...] may not be appropriate with low frequency noise.”

[37] Mr. Girard has demonstrated through the video recording evidence that he experiences the vibration from passing trains. The Agency is of the opinion that the vibration may be attributed to a combination of ground-borne vibration and building resonances from low frequency airborne noise, thereby reducing the noise reduction performance of the building envelope. In light of this, the Agency does not agree with the 27 dB reduction factor in this situation and therefore gives no weight to the anticipated noise reduction factor proposed by CP.

[38] With respect to the noise measurements that Mr. Girard submitted, notwithstanding CP’s challenge that the evidence produced must be verified by an independent expert, the Agency is of the opinion that the sound level meter measurement captured in the video recordings can be relied on as indicative of high noise levels from the passing trains.

[39] Mr. Girard filed a Decibel (Loudness) Comparison Chart (Chart) that correlates different activities to sound pressure levels (in unweighted decibels, dB). The Chart shows sound levels of 90-95 dB to be a “[l]evel at which sustained exposure may result in hearing loss”. Mr. Girard claims that the railway noise could impact hearing and cause possible hearing loss. The Agency notes that the Chart’s reference to a “sustained exposure” of 90-95 dB is based on a cumulative noise exposure over a period of time. The video recordings show instantaneous C-weighted sound levels at the time of the recording. Although the sound levels that Mr. Girard experiences are high, they are not sustained beyond the duration of the passing train. Further, the sound levels in the Chart and in the video recordings are based on unweighted and C-weighted sound levels respectively, two different metrics. Therefore, the Agency is of the opinion that it cannot draw any conclusions on possible hearing damage.

[40] Mr. Girard claims that the vibration from the trains is causing structural damage to his residence, but he has not submitted evidence to substantiate the claim. Based on calculations using methods outlined in the FTA’s Transit Noise and Vibration Impact Assessment, CP submits that the vibration at Mr. Girard’s residence would be up to 73 VdB, less than the “feelable vibration” level.

[41] In light of the evidence, the Agency finds that Mr. Girard failed to establish that the “feelable” vibration occurring at his residence is sufficiently high to cause damage as a result of passing freight trains.

Time of day and frequency of occurrence

[42] CP asserts that Mr. Girard’s concern appears to be focussed on the impacts of night-time noise from passing trains. In Decision No. 35-R-2012, the Agency recognized that noise and vibration at night can cause a higher degree of disturbance to persons than during the day.

Presence of noise other than that of railway operations

[43] CP asserts that truck traffic along Henry-Ford Street and traffic along Highways 340 and 540 contributes to the surrounding ambient noise. However, neither CP nor Mr. Girard has provided any qualitative or quantitative data regarding the potential contribution of ambient noise to the overall noise environment at Mr. Girard’s residence. Hence, the Agency cannot draw any meaningful conclusions on the current ambient noise environment. For this reason, the Agency will not consider the ambient noise environment in its determination.

Finding on substantial interference

[44] Taking into consideration the close proximity of passing trains, the high noise levels and “feelable” vibration levels during the day and night, the Agency finds that the noise and vibration from railway activities cause substantial interference to Mr. Girard.

Reasonableness

[45] Having determined that CP’s pass-by noise and vibration are, in fact, sufficient to cause substantial interference, the Agency must determine whether these noise and vibration are reasonable in light of the criteria set out under section 95.1 of the CTA.

[46] Section 95.1 of the CTA imposes an obligation on a railway company to cause only such noise and vibration as is reasonable, taking into account its level of service obligations (as legislated under sections 113 and 114 of the CTA if applicable), its operational requirements and the area where the operation takes place.

[47] The Guidelines state that:

… Reasonableness is determined on a case-by-case basis and relates to an objective sense of what is just and proper in a given circumstance. What is reasonable in some circumstances may not be reasonable in other circumstances.

The challenge is to carefully balance the concerns of communities with the need for a railway company to maintain efficient and economically viable railway operations. Overall, this balance is inherent in the statutory requirement that the allowable noise or vibration be only that which is reasonable.

CP level of service obligations and operational requirements

[48] In its application, CP referred to Decision No. 221-R-2010, related to a complaint by Antoon Groenestein and Robyn Wiltshire, wherein the Agency stated:

It is clear from the legislative framework and the national transportation policy contained in section 5 of the CTA that, in exercising its mandate under section 95.3, the Agency must balance the interests of the parties. Railway companies and urban transit authorities, on the one hand, are involved in activities that necessarily cause noise and vibration, and these activities are also required to fulfill their various level of service obligations and operational requirements, and to maintain the “competitive, economic and efficient national transportation system that [...] serve[s] the needs of its users, advance[s] the well-being of Canadians and enable[s] competitiveness and economic growth in both urban and rural areas throughout Canada”.

[49] The Agency recognizes that by their nature, railway operations cause noise and vibration. The Winchester Subdivision is a key component of CP’s main east-west rail transportation corridor directly connecting the Greater Montréal Region with southern Ontario and western Canada. CP states that the Winchester Subdivision forms part of a North America transportation supply chain carrying goods to and from the Port of Montréal. CP claims that this corridor is key to the efficient movement of traffic out of the Port of Montréal and must operate on a 24 hours a day, 7 days per week basis to maintain the competitive advantage of the Port of Montréal. The Agency agrees that CP’s Winchester Subdivision is an important and integral part of its network.

[50] The Agency also acknowledges that the Winchester Subdivision services CP’s Lachine Intermodal Facility, which CP states is one of its largest intermodal facilities and its most eastern container handling facility on its transcontinental rail corridor linking Montréal to Vancouver.

[51] The Agency recognizes that main line operations have taken place on the Winchester Subdivision for more than 100 years and accepts that the Winchester Subdivision has always been a busy main line.

[52] The Agency accepts CP’s submission that the track is straight, contains no switches or crossings in the immediate area and is in good working order, all of which help to reduce pass-by noise and vibration. The Agency notes that the track is a continuously-welded rail which, by the absence of rail joints, eliminates the noise that would otherwise be generated by thumping wheels rolling over these joints. Further, CP asserts that it has chosen not to leave idling trains in the area.

Area

[53] The Agency notes that Mr. Girard moved into his residence shortly after its construction in 2009. The Agency must take into account the fact that the railway tracks were at that location for over a century, and double tracked since 1912, well before the construction of Mr. Girard’s residence. The Agency further notes that, according to CP, since the double-tracking, railway operations have not changed.

[54] The Agency also recognizes that Mr. Girard appears to have possibly been misinformed on the actual daily train traffic volumes prior to his purchase of the house, having been told that there were two or three trains per day. Based on the record before the Agency, it is unclear whether this statement was by a representative of the developer or another third party. Mr. Girard claims that he “tried to investigate”, but he did not provide any additional details for the Agency’s consideration as to whether he made inquiries to CP or the Municipality.

[55] The Agency notes that despite the close proximity to the busy main line track, no evidence was presented that the residential developer assessed the impacts of the railway noise and vibration on the residential development. No evidence was presented that the developer incorporated mitigation measures in the construction of the house to lessen the exposure to noise and vibration.

[56] Furthermore, beyond a post facto municipal council resolution expressing concern about noise and vibration and affirming that the Municipality aims to ensure that its citizens get the best possible quality of life, there is no evidence before the Agency indicating that when approvals were sought for the housing development, any consideration was given by the Municipality to issues of noise and vibration or to the proximity of residences to CP’s main line, notwithstanding the Federation of Canadian Municipalities and Railway Association of Canada’s Proximity Guidelines and Best Practices, which pre‑date the Municipality’s decision to approve the construction and of which the Municipality should have been aware.

[57] A Municipality takes a risk when deciding to allow housing development in close proximity to a railway right of way and the Agency is of the opinion that Municipalities have a responsibility to assess compatibility issues before approving a housing development along a railway right of way, and if they approve a development, to ensure that the necessary mitigation measures are implemented. The Agency notes that the Municipality apparently authorized the residential construction along CP’s main east-west rail transportation corridor. However, there was no evidence presented to the Agency of any mitigation measures having been implemented. In fact, CP draws attention to the fact that no berm or noise wall was constructed.

[58] The Agency acknowledges that Mr. Girard is disturbed by the noise and vibration levels generated by the passing trains. However, Mr. Girard purchased a house next to a busy rail corridor and there is no evidence that mitigation measures were put in place by the developer or the Municipality.

[59] When weighing the noise and vibration concerns in the context of section 95.1 of the CTA, the Agency must balance the interest of the parties. In this case, the Agency finds that more weight must be given to CP’s level of service obligations on a key component of its main east‑west corridor of long standing and on CP’s operational requirements, which were amply described in CP’s submissions.

CONCLUSIONS

[60] Taking all of the above factors into consideration, the Agency concludes that the current noise and vibration from CP’s railway operations at Mr. Girard’s residence is reasonable.

[61] Accordingly, the Agency dismisses the complaint.

Member(s)

J. Mark MacKeigan
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