Decision No. 74-R-1999
With Order No. 1999-R-113
March 1, 1999
IN THE MATTER OF a complaint filed by Wayne Lundvall concerning:
- the noise from idling diesel locomotives being refuelled and parked at the Canadian National Railway Company's Walker Yard in Edmonton, Alberta; and
- general noise levels emanating from the Canadian National Railway Company's Walker Yard in Edmonton, Alberta.
File No. R 8030/E1
By letter dated March 18, 1997, Wayne Lundvall (hereinafter the complainant) filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) regarding the noise and vibration emanating from idling diesel locomotives being refuelled and parked across from his residence and stating that Canadian National Railway Company (hereinafter CN) was not adhering to commitments it had made to store idling diesel locomotives as far from inhabited areas as is practicable. CN was provided with copies of the complaint as well as follow up letters detailing further incidents of noise problems and was requested to provide its comments on the complaint by May 14, 1997. CN was also requested to provide a copy of its operating instructions entitled General Notice No. 13, with respect to refuelling of diesel locomotives on the cab track across from the complainant's residence. In addition, CN was requested to advise what measures it is undertaking to ensure that these instructions are being followed and that its commitment to park idling locomotives away from inhabited areas is implemented.
In its answer dated May 29, 1997, CN stated that compliance with its operating instructions has improved markedly and that the situation is being monitored.
By letter dated July 3, 1997, CN was requested to explain why it could not store its idling locomotives between 113A and 109 Streets at 127 Avenue.
By letter dated July 11, 1997, CN requested additional time to reply in order that the parties could meet at the subject site and review the conditions.
On August 12, 1997, Agency staff met with the complainant and local CN representatives at the site. The complainant agreed that his original complaint regarding the refuelling and idling of diesel locomotives on the cab track appeared to have been resolved. Both CN and the complainant agreed that this complaint should probably be closed; however, both CN and the complainant agreed to submit final comments and respond to each other's comments. With respect to other sources of noise in the Yard such as shunting and whistling, CN indicated a possible willingness to conduct a noise survey.
The complainant advised that the issue regarding the refuelling and idling of diesel locomotives on the cab track could be put to rest provided CN made a reasonable effort to maintain this condition. CN agreed that the complaint concerning noise from locomotives left idling or being refuelled had been addressed. However, the complainant pointed out that CN has not addressed the other noise problems in the Yard. In this regard, CN agreed to carry out a noise survey. By letter dated September 29, 1997, Agency staff notified the parties that the file on the complaint is closed and requested that a copy of the completed noise survey be filed with the Agency in order that the situation could be monitored.
However, by letter dated October 1, 1997, the complainant advised that CN continued to park idling diesel locomotives on the cab track and other tracks adjacent to his residence. As a result, Agency staff requested CN to respond to this further complaint.
By letter dated October 27, 1997, CN advised that it is and remains committed to moving its idling diesel locomotives away from the complainant's residence, except on occasions when the yard is congested. The cases reported by the complainant were exceptions. CN advised that it is continuing to make every reasonable effort to maintain its noise mitigation procedures and continues to address the situation through a technical study.
By letter dated February 10, 1998, CN filed a copy of its noise survey at Walker Yard with the Agency and the complainant. The complainant responded that the report confirmed the high noise level in the complainant's area. CN answered that it remains committed to making reasonable efforts to maintain its noise mitigation procedures on the understanding that railway operations and conditions so allow.
By letter dated June 3, 1998, Agency staff requested that CN provide a list of the specific measures that would mitigate the noise concerns of the complainant. In addition, CN was to advise what would be the impact, if any, if it parked its idling locomotives away from the residential area.
CN replied to the issues raised and included a summary of the steps it had taken to address the complainant's concerns. The complainant continued to maintain that all of the offending noises have not been dealt with by CN.
Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is 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 March 1, 1999.
In its letter dated December 5, 1996, the complainant advised Transport Canada that despite his attempt to resolve the matter directly with local CN officials and CN's agreement to have its idling diesel locomotives refuelled further to the east and away from residential areas, CN continues to park and refuel its idling diesel locomotives across from his residence resulting in considerable noise.
In its letter dated February 5, 1997, CN advised Transport Canada that the parking and refuelling practice across from the complainant's residence was contrary to CN's instructions and that it had reissued these instructions and would be monitoring their adherence. CN also advised that it would refuel its diesel locomotives away from the subject location and attempt to park its idling diesel locomotives as far away from inhabited areas as practicable. By letter dated February 13, 1997, Transport Canada referred the matter to the Agency.
The issue to be addressed is whether CN, in the exercise of its powers, has done as little damage as possible, as provided for in subsection 95(2) of the CTA, and, if not, what action should be taken by the Agency, if any.
POSITIONS OF THE PARTIES
The complainant advises that despite his attempts to resolve the matter directly with local CN officials and CN's agreement not to park and refuel its idling diesel locomotives across from his residence, CN continues this practice. The complainant points out that CN is not complying with its own operating instructions. The complainant cites several examples of when CN continued these practices and explains that this results in noise and vibration for several hours at a time, both during the day and night. In addition, the noise associated with shunting rail cars, whistling and the passing of fully loaded trains on one of the northern-most tracks contributes greatly to the problem. With respect to these through trains, the complainant points out the westbound trains utilizing tracks CF48 and CF49 will stop while a crew member walks up to and manually sets a switch across from his residence at which time the diesel locomotives accelerate from a stop position which creates a deafening sound.
The complainant submits that there is parkland adjacent to the railway, east of his residence and away from residential areas that would be ideal to park and refuel diesel locomotives.
The complainant also advises that despite several calls he made to the Walker Yard Control Tower and CN Public Affairs advising of his concerns, he received limited response. The complainant further advises that CN's "shutdown" order from May to October for diesel locomotives left idling for more than fifteen minutes is not being adhered to on a regular basis.
The complainant, while recognizing that some noise is to be expected from the railway company's operations in Walker Yard, expects the noise to be as reasonable at it was in 1990 when his home was purchased. The complainant also submits that CN should erect a noise barrier along the north side of the Yard from 117 Street to 113A Street.
CN states that its operating practices are efficient and necessary and are in conformity with all operating rules. However, railway operations by their very nature create noise.
CN points out that it has issued an instruction entitled General Notice No. 013 dated January 31, 1997 specifying that diesel locomotives are no longer to be serviced or refuelled on the cab track at Walker Yard. Fuelling that was once done on the cab track is now being carried out on a spur track located farther away from the complainant's residence and at the prime fuelling facility at the diesel locomotive reliability centre. Further, CN has agreed to implement a program to prioritize fuelling and to produce a map to indicate locations within the Yard where engines are not to be parked. A bulletin will be issued and monitoring implemented. In addition, CN points out that there is a shutdown order in effect from May to October for any diesel locomotives which idle for more than 15 minutes and CN's practice is to keep diesel locomotives idling only when temperatures drop below 7 degrees Celsius.
Further, CN states that, where possible, it has moved its idling diesel locomotives away from the complainant's residence to its Lumber spur adjacent to 127 Avenue between 117 Street and 104 Street.
CN has reviewed and considered the complainant's suggestion of parking idling diesel locomotives across from the parkland between 109 and 113 Streets and notes that this area offers trackage for parking diesel locomotives that is the farthest location from residential areas that exists today at Walker Yard. CN also examined the alternatives of parking diesel locomotives further west or further south into the yard and has determined that moving the parked diesel locomotives off the presently used CF48 track would have a significant negative impact on CN as this track is located near the operations tower where crews pick up their work assignments and is essential for extended run through operations.
However, in order to resolve the complainant's concerns, CN states that it is prepared to utilize only 1,600 feet on the extreme east end of track CF48 and 400 feet on the east end track CF49 to park diesel locomotives thereby placing the closest diesel locomotive approximately 1,200 feet from the complainant's residence. The above procedures will be communicated to crews by bulletin and monitored to ensure compliance. CN points out that this measure will negatively impact CN to some degree as the crews will have to walk an additional distance to the operations tower.
By implementing the above change in location of idling diesel locomotives, CN points out that the distance between the complainant's residence and the idling diesel locomotives will increase from approximately 230 feet to 1,200 feet. CN submits that this will produce a very noticeable drop in noise levels, particularly at night and that this should more than adequately address the complainant's concerns.
With respect to the noise levels associated with shunting, CN states that it has limited coupling speeds to 4 mph with 70 percent of the shunting being roll shunting. In addition, CN has agreed to issue instructions to prevent use of all whistle blowing in the Yard except in cases of radio failure or emergency.
CN states that it has agreed to instruct waiting trains to stand back of the residential area to mitigate noise caused by trains passing by. A general bulletin will be issued and monitoring implemented.
CN maintains that it has voluntarily undertaken, at its own expense, a noise survey to analyse, in general, the noise associated with operations at Walker Yard and, specifically, included the location of the complainant's residence in its specifications for the study.
CN expresses its opinion that it is evident that residents have been aware of railway yard operations for decades and can reasonably expect to be aware of the noise that is inherent in railway operations and that the noise levels that the complainant is encountering now are the same as he encountered in 1990.
In summary, CN submits that it has acted in a more than reasonable manner in addressing this complaint and that the railway company has done as little damage as possible in carrying out its operations. Further, CN maintains that the courts in Canada have recognized that noise and vibration are an inevitable and lawful consequence of railway operations and that the noise experienced by the complainant does not constitute damage within the meaning of the CTA.
CN also contends that the complaint relating to Mr. Lundvall's specific concerns has been dealt with and that the file in this matter has been closed. It refers to the Agency staff letter dated September 29, 1997 in support of its position.
ANALYSIS AND FINDINGS
The Agency has accepted this complaint as one falling within the ambit of section 95 of the CTA.
Subsection 95(1) thereof provides that:
- Subject to the provision of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:
- make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway:
- divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;
- make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;
- divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and
- do anything else necessary for the construction or operation of the railway.
Subsection 95(2) of the CTA states that:
The railway company shall do as little damage as possible in the exercise of the powers.
Section 37 of the CTA states that:
The Agency may inquire into, hear and determine a complaint concerning an act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.
Pursuant to these legislative provisions, the Agency has the jurisdiction to hear and determine this complaint.
With respect to CN's contention that the file with respect to the complainant's specific concerns regarding the refuelling of idling diesel locomotives was closed, the Agency notes that soon after the file was closed the complainant filed additional noise incidents which led to a continuation of an examination of the complaint.
The Agency notes that CN has issued General Notice No. 013, specifying that units are no longer to be serviced or refuelled on the cab track at Walker Yard across from the complainant's residence and CN's statement that it has moved its refuelling and servicing activities away from this track. The Agency also notes that CN has issued an order to shut down diesel locomotives idling for more than 15 minutes, from May to October. Further, the Agency notes that CN has, or is in the process of, issuing instructions that will generally reduce noise in Walker Yard as well as address many of the complainant's concerns.
The Agency notes the numerous incidents documented by the complainant which demonstrate, in his view, that CN is not adhering to its own operating instructions. The Agency also notes the complainant's comments that he has been unsuccessful in his discussions with CN.
According to CN's noise survey, the average noise levels recorded at the complainant's residence are approximately 60 dBA during the day and 55 dBA during the night. Health and Welfare Canada in March 1989 published the National Guidelines for Environmental Noise Control. The noise levels experienced by the complainant exceed these guidelines.
With respect to noise barriers, it is noted in the noise survey that these would not likely be effective in reducing noise given the location where these barriers would have to be installed and the low frequency sound of idling locomotives. However, it is also noted in the survey that increasing the distance from the idling locomotives to the complainant's residence would be an effective method of noise mitigation and that a doubling of the distance between the source of the noise and the receiver can reduce noise by 6 dBA and produce a noticeable drop in noise levels particularly at night.
The Agency notes that CN, despite some negative impacts on its operation, is prepared to park its idling diesel locomotives across from the parkland on 1600 feet of track at the east end of track CF48 and on 400 feet at the east end of track CF49, in a effort to resolve this noise complaint. The Agency finds that this would enable CN to place its closest diesel locomotive 1200 feet away from the complainant's residence and thereby significantly reducing the noise levels that the complainant is subjected to. However, from the information on file, the Agency is of the opinion that this measure would only transfer the noise problem to residents living on 109 Street. To minimize the impact of this change in operations to all residents, the Agency is of the opinion that CN should park all idling diesels locomotives at the east end of tracks CF48 and CF49, equidistant from the residences on 113A Street and the residences on 109 Street.
The Agency notes that CN has initiated a number of positive actions and mitigative measures to reduce noise which could have improved the situation. However, the implementation of these mitigative measures has been largely ineffective as it appears that operating instructions and bulletins are not always being followed by train crews. CN, pursuant to subsection 95(1) of the CTA, may exercise certain powers for the purpose of operating its railway. Although the Agency recognizes that it is inevitable that some noise will result in the railway company's operations, subsection 95(2) places a limitation on the exercise of its powers. In this regard, the Agency is of the view that noise can cause damage. The complainant, as is indicated in CN's noise survey, experiences noise levels that exceed those of the National Guidelines for Environmental Noise Control. The Agency is of the opinion that if CN were to follow its own commitment to put in place noise mitigation measures, the noise experienced by the complainant would be reduced.
Based on the above findings, the Agency has determined that CN has not done as little damage as possible in the exercise of its powers. Accordingly, the Agency will require CN to undertake certain actions.
An order to this effect will be issued.