Letter Decision No. LET-R-27-2013

January 29, 2013

Railway noise and vibration complaints against CSX Transportation, Inc. pursuant to section 95.3 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No.: 
10-05060

INTRODUCTION

[1] Elzear and Shirley O’Connor and Clarence-Michael Chaput (complainants) filed individual noise and vibration complaints with the Canadian Transportation Agency (Agency) against CSX Transportation Inc. (CSXT) concerning railway operations near Lake Street in Huntingdon, Quebec (Interchange Point.) In Decision No. LET-R-115-2012, the Agency joined the two complaints.

[2] The complainants are requesting CSXT to: cease switching rail cars after midnight; only blow the train whistle before a crossing; turn off engines when parked (idling); do all parking and switching outside of town in a non-residential area; or, locate a train yard or sidings outside town limits.

[3] In Decision No. LET-R-128-2012, the Agency added Canadian National Railway Company (CN) as a respondent to the complaints at the request of CSXT.

[4] CSXT is a Class 1 railway company with a railway network within 23 states in the United States and Ontario and Quebec, Canada. In Quebec, CSXT conducts its railway operations on the Montréal Subdivision beginning at the Canada/United States border to Beauharnois, with its main line passing through Huntingdon.

ISSUE

[5] Is CSXT, in its railway operations, complying with its obligation under section 95.1 of the Canada Transportation Act (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

[6] Huntingdon, Quebec is located southwest of Montréal, Quebec near the New York border. Since 1897, CSXT and its predecessors’ rail traffic between the Montréal region and Massena has passed through Huntingdon. Huntingdon is the interchange point between CN and CSXT for interline traffic from Quebec and the Maritimes headed for CSXT’s Yard in Massena, New York. In 1992, CN and CSXT agreed to have the interchange point changed from Huntingdon to Massena. However in 2004, due to customs and border considerations, the interchange point reverted back to Huntingdon.

[7] The interchange in Huntingdon occurs on CSXT tracks between two public road-rail at-grade crossings at Ridge Road and Lake Street and is within 20 and 30 metres from the complainants’ residences. The Interchange Point consists of one mainline track and a siding. The Lake Street crossing is a guarded crossing protected by an automatic warning system with flashing signals.

[8] Interchange operations are conducted twice a day, a northbound and a southbound train, seven days a week on a year-round basis. Southbound, CN brings the traffic from CN’s Taschereau Yard in Montréal to the interchange point in Huntingdon where CSXT picks up the train and takes it to Massena, New York. Northbound, CSXT brings the traffic from Massena to the interchange point in Huntingdon, where CN picks up the train and takes it to Montréal.

POSITIONS OF THE PARTIES

Mr. Chaput

[9] Mr. Chaput states that when the train passes, the horn is blown for long periods of time during the day and night and that car switching near his residence is like living in a war zone. Mr. Chaput submits that trains are left idling for hours and, on occasion, the engines are left running in 100° Fahrenheit weather for 24 hours. Mr. Chaput contends that the railway noise and vibration has caused hearing loss, loss of sleep, windows shaking, and dishes vibrating in the cupboards and that the children are afraid at night. Further, it is impossible to keep windows open due to the fumes.

Elzear and Shirley O’Connor (O’Connors)

[10] The O’Connors submit that the horn is blown when cars are being switched as the train is moving back and forth across the road crossing, and that it is blown for extended periods during the day and night. The O’Connors submit that trains, which are usually made up of two or three engines, are frequently left idling on the tracks beside their residence for long periods of time during the day and night, even in warm weather. When the engines are left idling, the engines surge, release air, and rev up and down. The O’Connors contend that Mr. O’Connor has experienced hearing loss due to the noise from the railway operations. The O’Connors state that since they filed their application, the idling situation has improved.

[11] The O’Connors contend that the fumes from the idling trains permeate their residence and result in breathing problems, headaches, burning eyes and nausea. The O’Connors state that they are not able to sit outside on their property and enjoy “fresh air” and that Mr. O’Connor has visited the hospital emergency room due to the fumes from idling trains.

[12] The O’Connors submit that their residence shakes and rattles when rail cars are being switched along the tracks beside their residence. The switching keeps them awake at night. The O’Connors state that since they filed their application “switching has improved.”

[13] The O’Connors submit that they are experiencing stress due to not knowing and anticipating when and for how long the next disturbance will take place.

[14] The O’Connors submit that due to the railway operations a thermal window facing the track has been replaced three times, a section of the bay window facing the tracks was replaced and the house has been pressure washed often.

Logs of noise and vibration events

[15] The complainants filed two separate logs of noise, vibration and fumes events. The logs consist of a list of recorded events, including the date, time of day, duration, number of engines, and the nature of the railway operations for each event. The most recent log begins on September 9, 2009 and ends July 15, 2012.

[16] There were 60 quantifiable idling events recorded between September 9, 2009 and July 15, 2012:

  • 17 events lasted two hours or less;
  • 14 events lasted over two hours but five hours or less;
  • 13 events lasted longer than five hours but ten hours or less;
  • 12 events lasted longer than ten hours but 20 hours or less; and,
  • 4 events lasted longer than 20 hours.

[17] The longest event recorded lasted 32 hours and took place on January 23 and 24, 2012. There were seven events that lasted longer than two hours that took place during the late spring and summer and there were 25 events that took place between 12:00 a.m. and 6:00 a.m.

Switching

[18] There were 19 quantifiable switching events recorded between September 9, 2009 and January 10, 2012:

  • nine events lasted one hour or less;
  • four events lasted over one hour but less than two hours; and,
  • 6 events lasted 2 hours or more.

[19] The longest switching event lasted six hours on March 9, 2011. There were nine night switching events listed which took place between 12:00 a.m. and 6:00 a.m.

Whistling/horns

[20] The logs recorded nine whistling/horn events between September 9, 2009 and July 15, 2012, all of the events took place at night. The logs refer to a non-stop whistling event that lasted from 2:00 a.m. to 3:35 a.m. on November 16, 2011, at which time it was believed that the horn was broken.

CSXT

[21] CSXT submits that the noise and vibration near the complainants’ residences do not constitute substantial interference with the ordinary comfort or convenience of living according to the standards of the average person and that given the proximity the complainants live to the railway line, one can expect train operations to be heard. CSXT asserts that the noises are normal noises caused by operations required for the running of a railway.

[22] CSXT maintains that the complainants filed little or no evidence on the nature, duration, levels or frequency of noise or the impacts of the noise and vibration.

[23] CSXT points out that approximately two trains are interchanged with CN per day at the Interchange Point and that the number of interchanges carried out has not changed over the past several years.

[24] CSXT provides the following description of its interchange operations with CN at Huntingdon:

Southbound

CN operates the southbound train to Huntingdon, leaving the train near the Interchange Point. A CSXT crew is then called to assume operations and to take the train to Massena.

Northbound

CSXT operates the northbound train to Huntingdon; leaving the train at the Interchange Point. CSXT notifies CN of the arrival of the train from Massena three hours in advance to ensure that CN has enough time to dispatch its crew to Huntingdon.

[25] CSXT submits that, as per common rail industry practice, once CSXT leaves the train at the interchange, it becomes CN’s responsibility. CSXT claims that “[u]sually, following a proper coordination of crew changing activities between CSXT and CN, trains are moved one to two hours after being parked on the siding,” however, crew changes may take some time due to operational requirements of the crew prior to departing the Interchange Point. Further, CSXT states that in the case of an extended interchange period, when possible, CSXT’s crews are instructed to shut down the locomotives and to park the locomotives as far away as possible from the complainants’ residences.

[26] CSXT submits that cold weather and critical functions like air pressure, starting systems and battery charge require that locomotives be left idling, and that it takes at least one hour to complete the required operational tests (air brakes) when restarting the engine. CSXT states that 75 percent of its locomotives are equipped with APU or AESS,[1] the locomotive idling reduction technology and that the number of locomotives with this type of technology will “most likely increase in the future.”

[27] According to CSXT, it has considered, but eliminated, all other potential interchange locations near the Montréal region based on rail and road infrastructure and proximity to residential areas. CSXT maintains that the interchange point can only be at the Lake Street location due to the length of the siding available and its proximity to local customers, the need to keep the mainline track clear for through traffic and the need to provide road access for changing crews. CSXT submits that there is no other siding available in the area with sufficient capacity for CSXT’s railway operations.

[28] CSXT submits that switching activities must be performed at the Interchange Point in order to serve local customers.

[29] CSXT contends that the Agency does not have jurisdiction over whistling as it is a safety requirement pursuant to the Canadian Rail Operating Rules (CROR).

[30] CSXT recognizes that “[s]ignificant switching activities may have...taken place near the complainant’s residences... and could have lasted several hours,” but it states that these switching operations were required by Canadian Customs. However, in May 2012, CSXT and Canadian Customs agreed that customs clearance can be performed at the Beauharnois Yard, north of Huntingdon.

[31] CSXT submits that only minor switching operations of 30 to 60 minutes will be conducted near the complainants’ residences, and that this switching is performed to provide service to local customers. CSXT adds that due to local customer delivery time requirements and safety interests to limit interruptions at the public crossing, these switching operations will take place in the early morning, after midnight. CSXT states that crews are instructed to conduct switching operations and keep the locomotives as far away as possible from the complainants’ residences when feasible.

CN

[32] CN contends that it only causes such noise and vibration as is reasonable. CN states that its only operations in the area are interchanging traffic with CSXT, and that CSXT is responsible for all elements of CN’s operations in the area.

[33] CN submits the following description of its interchange operations with CSXT at Huntingdon:

Northbound Train # 326

The CSXT crew with the northbound train departs from Massena, New York. The train is usually made up of empty rail cars. CSXT secures the train in Huntingdon and leaves it for CN to pick up. Under normal procedures, CSXT advises CN’s Chief Dispatcher when CSXT departs from Massena. CN then orders the crew.

At Huntingdon, the CN crew prepares the train and requests clearance for departure from CSXT. The clearance time varies.

Southbound Train # 327

The CN crew with the southbound train departs from Taschereau. The train is usually made up of loaded rail cars. Before entering CSXT territory, CN must be given clearance from CSXT dispatch, which specifies at which of the three locations CN should leave the train.

CN secures the train and confirms its arrival with CSXT. CN’s crew travels back to Taschereau Yard by taxi.

[34] CN submits that under its collective agreement, it is required to give its crews two hours notice prior to the start of a shift. The CN crew shift starts at CN’s Taschereau Yard where the crew leaves for Huntingdon by taxi, a minimum travel time of 45 minutes.

[35] CN submits that there are three possible locations where CN/CSXT northbound and southbound traffic can be interchanged:

  1. Between Lake Road and Ridge Road (Interchange point)
  2. Montée Smellie to the south; and
  3. Chemin Rankin to the north.

[36] According to CN, it is able to leave the trains at any of the three locations and that trains of 50 cars or less are left at the Interchange Point on the siding; longer trains are left at the other locations, as instructed by CSXT.

[37] CN states that whistling is legally required at this location by Rule 14(L) of the CROR and it claims that whistling is a safety issue and, as set out in previous Agency rulings, is within the jurisdiction of Transport Canada.

[38] CN submits that idling occurs when a train has been dropped off and is waiting to be picked up, that is, when it is waiting to be recrewed. According to CN, it is CSXT that determines: when a southbound train departs Taschereau for Huntingdon; where CN drops off the southbound train in Huntingdon; if CN should shut down the locomotives; when CN should pick up the north bound train in Huntingdon; and, when CN departs Huntingdon for the Taschereau Yard with the northbound train.

[39] CN indicates that it is not normally required to perform switching operations when it picks up the train from Huntingdon. However, if CN receives a train that has not been marshalled in accordance with applicable Canadian acts and regulations, CN will set off the affected cars (shunt).

ANALYSIS AND FINDINGS

The law

[40] Section 95.1 of the CTA imposes an obligation on railway companies to only cause such noise and vibration as is reasonable taking into account their level of service obligations, their operational requirements and the area where the rail operation takes place.

[41] According to section 95.3 of the CTA, the Agency, on receipt of a complaint that a railway company is not complying with section 95.1 of the CTA, may order the railway company to undertake any changes to its railway construction or operations that the Agency considers reasonable to ensure compliance with that company’s noise and vibration obligation imposed under that section.

[42] Pursuant to section 95.2 of the CTA, the Agency has issued Guidelines for the Resolution of Complaints over Railway Noise and Vibration (Guidelines). The Guidelines set out the elements that the Agency considers when determining whether a railway company has caused only such noise or vibration as is reasonable. These elements are:

  • railway operations in the affected area, including any relevant changes;
  • the characteristics and magnitude of the noise or vibration (such as the level and type of noise [impulse or constant,] the time of day, duration, and frequency of occurrence;)
  • relevant noise or vibration measurements or studies;
  • the presence of other ambient noise, such as highways;
  • the impact of the noise or vibration disturbance on persons affected;
  • relevant standards to assess the significance of the effects of noise and vibration levels;
  • available mitigation methods and technologies that are cost-effective and operationally feasible;
  • mitigation efforts made by the parties; and,
  • any other issues relevant to the complaint.

[43] 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.” However, on the other hand, the interests of communities affected by this noise and vibration must be considered by the railway companies and urban transit authorities in determining how best to perform the activities in order to meet their obligations under section 95.1.

Analytical framework

[44] In Decision No. 35-R-2012, the Agency established the analytical framework for deciding whether a railway company is complying with its noise and vibration obligations. Making a parallel with jurisprudence of courts of civil jurisdiction on nuisance law, the Agency determined that the first step consists of determining whether railway companies have caused noise and/or vibration which constitute substantial interference with the ordinary comfort or convenience of living, according to the standards of the average person (substantial interference). In the affirmative, the Agency must then balance the noise and/or vibration against the criteria set out in section 95.1 of the CTA to determine whether, in that context, the noise and/or vibration is reasonable. Corrective measures may only be ordered if, after this balancing exercise, the Agency concludes that noise and/or vibration is not reasonable. In examining whether substantial interference was caused in that case, the Agency considered the nature, the duration and frequency of the noise/vibration. In that Decision, the Agency also recognized that noise and vibration during the night can cause a higher degree of disturbance to persons than during the day. The Agency determined that when assessing the impact of the noise against the average person standard, comparable residences within the same area of exposure must be used.

The case against the Canadian National Railway Company

[45] The evidence on the record shows that CN’s operations at the Huntington Interchange Point mainly consist of dropping off and picking up traffic from CSXT. It is CSXT that dispatches CN to pick up and drop off traffic at the Interchange Point, including setting the time and location for the pickup and drop off of traffic. Further, CN must be given clearance from CSXT to operate over CSXT’s tracks. When CN drops off traffic at the Interchange Point, it is CSXT that instructs CN whether or not the locomotives should be shut down. While the evidence indicates that CN does perform certain switching activities at the Interchange Point, such activities are limited and only performed at the request and under the instruction of CSXT.

[46] As it is CSXT that determines all elements of CN’s interchange operations at the Interchange Point, and as there is no evidence to suggest that CN is not operating in accordance with the instructions received from CSXT’s dispatcher, the Agency finds that CN cannot be found responsible for any breach of section 95.1 of the CTA with respect to its railway operations at the Interchange Point.

The case against CSXT

Vibration

[47] As there is little evidence submitted by the Complainants concerning ground-borne vibration, the Agency will not make any specific findings in respect of vibration. This said, vibration can be a result of low frequency airborne noise. Therefore, concerns in respect of this type of vibration will be dealt with in the context of the analysis on the noise.

Fumes

[48] In Decision No. 21-R-2012, the Agency established that pollution and smoke from diesel locomotives “do not relate to noise and vibration... [and do] not fall within the purview of section 95.1 of the CTA.” The Agency, therefore, lacks jurisdiction with respect to the complaints related to the fumes.

Substantial interference - Idling

[49] The complainants’ residences are located 20 and 30 metres from the Interchange Point. Other than the railway operations, there is no evidence of other sources of noise in the area.

[50] The logs filed with the complaints describe the frequency and duration of idling events, including the number of locomotives left idling, as well as the switching activities performed at the Interchange Point. The logs contain entries of more than a hundred of these events during the periods of January 2005 to December 2009 and September 2009 and July 2012.

[51] With respect to idling, the logs show that two to three engines have been regularly left idling for periods up to 20 hours near the complainants’ houses, that several of these events occurred during part or the entire night, year-round, including during the warmest period of the year, when there is no risk of freeze, which is one of the two reasons advanced by the CSXT as an impediment to turning the engines off.

[52] CSXT neither refuted nor disputed the logs or any individual events recorded in the logs.

[53] The Agency notes CSXT’s submission that 75 percent of its locomotives have anti-idling technology installed. It also notes CSXT’s submission that it has instructed its crews to leave the engines as far as possible from the complainant’s residences and to shut down the engines whenever the temperature and safety permits. However, as appears from the logs, these measures did not prevent engines from being left idling for extended periods of time throughout the year, which means that CSXT is either failing to diligently apply its operating instructions when operating at the Interchange Point, or that such measures are inadequate to address noise issues in relation to interchange activities in close proximity to residences.

[54] In this case, there is no data available showing the precise noise levels observed at the complainants’ residences at any given time period. However, the Agency finds that there are several evidentiary elements establishing, on a balance of probabilities, that the noise associated with the interchange activities in Huntingdon cause substantial interference with the ordinary comfort or convenience of living, according to the standard of the average person.

[55] Locomotives contain powerful engines capable of pulling and pushing heavy loads over long distances and over steep grades. At low idling speeds, these engines produce loud, low frequency noise, even in the case of modern locomotives in good mechanical order. Occurrences when engines are parked and idling are discrete events and cause noise levels to spike for many hours, and are well above the ambient noise level, especially at night.  These elevated noise levels, as experienced by the complainants, cause windows and dishes to shake. When up to three locomotives are left idling at the same time, as in the case of the CSXT’s interchange operations at the Interchange Point, the noise emanating from the engines results in even higher noise levels than a single idling engine.

[56] The Agency finds that there are several factors supporting a conclusion that the impact of the noise from idling of these engines would be highly disturbing for anyone living at the residences of the complainants, as outlined in the Agency’s Guidelines:

  • Proximity: the residences of the complainants are only 20 and 30 metres away from the location of the engines and, therefore, noise cannot be noticeably reduced over such a short distance.
  • Duration of occurrence: the noise from the idling engines has been recurrent and has lasted for excessive periods of time up to 32 hours, which further exacerbates the impact of the noise. The unpredictable lengths of exposure time, as noted by the complainants, make it difficult to cope with the noise.
  • Time of day and frequency of occurrence: excessive idling periods are frequent and regularly take place at night time, a period when people are more easily disturbed.
  • Presence of ambient noise other than that of railway operations: there is no evidence of any other significant sources of noise in the area, which makes the noise from idling locomotives more perceptible, thus causing further annoyance.

[57] The Agency notes CSXT’s submission that when assessing against the standard of the average person, the Agency should consider the standard of the average person living in “similar proximity of an active main railway line.” However, the Agency is of the opinion that when assessing substantial interference, using as a factor the actual distance of the complainant’s residences from the noise source better reflects the impact of noise on the average person. The Agency finds it unnecessary to further define the standard of the average person.

[58] Based on the above, the Agency finds that the noise due to idling, especially incidents that last extended periods of time and take place at night, constitute substantial interference with the ordinary comfort or convenience of living, according to the standard of the average person.

Substantial interference - Switching

[59] The Agency notes that CSXT used to switch traffic near the complainants’ residences for two specific purposes; switching for Canadian Customs clearance and switching for local customers. However, CSXT states that, as a result of an arrangement with Canadian Customs, switching for Canadian Customs clearance has been relocated to the Beauharnois Yard.

[60] The documents filed by the complainants describe the frequency and duration of occurrences when rail cars were being switched on the tracks located near the complainants’ residences. The logs show that switching events at the Interchange Point have been performed on a regular basis, that many of these events were over two hours in duration, and have occurred during the day and night. Again, CSXT neither refuted nor disputed the logs or any individual events recorded in the logs.

[61] However, the logs contain no records of switching events after January 2012, which the Agency infers is a result of CSXT’s decision to relocate its switching operations for Canadian Customs clearance purposes to the Beauharnois Yard. Although the Agency recognizes that the volume of the switching activities has decreased and that the O’Connors acknowledge that “the problem with switching has improved,” the Agency notes that CSXT has not completely ceased switching operations at the Interchange Point, as CSXT states that “minor” switching would continue to be performed for local customers, and that the switching would last up to one hour and take place exclusively at night.

[62] Switching operations cause significant noise due to the nature of the activities involved including accelerating and braking as a result of frequent back and forth movements, coupling and uncoupling of rail cars, idling engines, wheel/rail interface (wheel squeal), and whistling. In this case, whistling events due to switching are frequent at this location because the cars are being switched over a public crossing. Noise from whistling is more fully dealt with in the following section.

[63] The Agency recognizes that CSXT reduced the number of noise events when the switching operations required for Canadian Customs were relocated to the Beauharnois Yard. However, the Agency finds that the noise due to the switching would substantially interfere with the ordinary comfort or convenience of living of an average person. This finding is based on: the close proximity of the current switching activity to the complainants’ residences; the nature of the noise caused by any switching activities; and, the statement by CSXT that switching will continue to take place at night, a period that can result in a higher degree of disturbance to persons. The Agency therefore finds that the noise due to any switching operations at the Interchange Point, particularly those that take place at night, constitute substantial interference.

Substantial interference - Whistling

[64] CSXT and CN both argue that noise caused by whistling at the Interchange Point cannot be dealt with as part of this complaint, as whistling is a legal requirement related to safety under Rule 14(L) of the CROR. This view is incorrect. Parliament amended the CTA to incorporate safeguards for the public against excessive noise and vibration of rail operations.

[65] The Agency acknowledges that it has no power to order cessation of whistling procedures required under the Railway Safety Act. However, as previously stated in Decision No. 424-R-2012 (Merg Kong v. the Canadian Pacific Railway Company), the Agency can, in the exercise of its powers under section 95.3 of the CTA, consider complaints where, for example, whistle blowing is determined to be excessive, abusive or not sounded for necessary safety reasons. The Agency considers that whistling that is associated with unnecessary or inefficient railway operations, even when required for safety purposes, cannot be considered reasonable under section 95.1 of the CTA, as it is not based on railway operational requirements.

[66] Therefore, the Agency will examine whether the noise generated by operations, including whistling noise, causes substantial interference. If so, the Agency will determine whether the noise is related to CSXT’s necessary operational requirements and, taking into account the criteria set out in section 95.1 of the CTA and the context, whether the noise is reasonable.

[67] The Agency notes that given the particular design of the rail and road infrastructure at the Interchange Point, the switching performed by CSXT at the Lake Street crossing requires trains to move back and forth across the public at-grade crossing.

[68] According to the logs submitted by the complainants, which CSXT neither refutes nor disputes, the whistle is being engaged whenever rail cars are being switched at the Interchange Point. Whistling events therefore occur at the same or very similar frequency and duration as switching events, and can occur at night, which is a period of time when the noise creates more disturbance to persons.

[69] With respect to the nature of the noise associated with whistling, the Agency notes that Rule 14 of the CROR prescribes the situations when whistling is required. When rail operations share the right-of-way with a public at-grade road crossing, the CROR requires that locomotive whistles be sounded. Rule 14(L)(i) of the CROR states that the whistle should be sounded as two long, one short and one long sounds “[a]t public crossings at grade: Trains exceeding 44 MPH must sound whistle signal 1/4 mile before the crossing, to be prolonged or repeated, until the crossing is fully occupied. Note: A whistle post will be located 1/4 mile before each public crossing where required. Movements operating at 44 MPH or less must sound whistle signal to provide 20 seconds warning before entering the crossing and continuing to sound whistle signal until crossing is fully occupied. EXCEPTION: Engine whistle signal is not required when manual protection is provided, or shoving equipment other than a snow plow over a crossing protected by automatic warning devices.”

[70] The Agency finds that the noise from repeated whistling, which is a result of the switching operations over the public at-grade crossing, given the proximity of the complainants’ residences to the Interchange Point, as well as the nature, frequency and duration of these noise events which occur day and night, would substantially interfere with the ordinary comfort or convenience of living of an average person. The Agency, therefore, finds that whistling noise in relation to switching activities conducted at the Interchange Point constitutes substantial interference.

[71] The logs show that the only whistling complained about is the whistling associated with switching activities. The complainants have not submitted any allegations in relation to the whistling of passing trains, therefore, the Agency will not consider whistling of passing trains in the context of this complaint.

Railway Noise Measurement and Reporting Methodology

[72] The findings on substantial interference caused by noise due to idling, switching and whistling are consistent with the results that would be obtained by an application of the Railway Noise Measurement and Reporting Methodology (Methodology). The Methodology was developed by the Agency to guide railway companies, citizens and municipalities in determining noise levels for the purpose of Agency proceedings. The Methodology is publicly available on the Agency’s Web site at www.otc-cta.gc.ca/eng/railway_noise_measurement.

[73] Method A of the Methodology sets out the basic principles to be considered as part of a simplified analysis to estimate noise levels. Some basic factors include the base sound level and adjustment factors for multiple sources, time period, and obstacles.

[74] As the O’Connors’ house is 20 metres and Mr. Chaput’s house is 30 metres from the tracks, sound levels at a distance of 25 metres have been used to represent impacts at both residences. The estimates do not include any adjustments for low frequency effects, building resonances, and rattling which would increase annoyance.

[75] The logs demonstrate that up to three engines are frequently left idling on the tracks next to the O’Connor’s residence ranging from 2 hours to over 18 hours. Using the table for a single idling locomotive, the base sound level at a distance of 25 metres is 69 dBA. When taking into consideration the adjustment factors for three locomotives, the Leq(1h) sound level increases from 69 dBA to 74 dBA at 25 metres.

[76] The base impulsive sound level for shunting noise for a single event is estimated to be 85 dBAi or 82 dBZf at 50 metres (an event is considered a single bang caused by the coupling of cars or locomotives). 50 metres is the shortest distance available in the table. In order to estimate the sound level from 50 metres to 25 metres, a +7 dB distance adjustment factor from the crossover base sound level table was used. Taking into consideration the distance adjustment factor, the sound level from a single shunting event, assuming a low coupling speed of 1 mph, increases to 92 dBAi or 89 dBZf at 25 metres. Accounting for the highly impulsive characteristics of shunting noise, as described in the International Organization for Standardization 1996-1:2003 referenced in Appendix D of the Methodology, an adjustment factor of +12 dB increases the projected Lmax sound level to 104 dBAi or 101 dBZf at 25 metres.

[77] The baseline sound level for train whistles, at a receptor distance of 25 metres, is estimated to be 73 dBA. Assuming 10 whistles over a 1-hour period, the Leq sound level increases from 73 dBA to 83 dBA. Taking into consideration the tonal characteristics of train whistles, a +5 dB adjustment was included, as described in Appendix D of the Methodology, increasing the estimated impact to 88 dBA. Therefore, the equivalent sound level over 1-hour, Leq(1h), sound level is estimated to be 88 dBA at 25 metres and the maximum sound level, Lmax, (adjustment factor of +33 dB) is estimated to be 121 dBA at 25 metres.

[78] The estimated noise levels for idling, switching, and whistling significantly exceed the World Health Organization (WHO) threshold for sleep disturbance. Furthermore, the estimated noise levels may exceed the WHO’s threshold for noise induced-hearing damage if the complainants are outdoors for many hours.

Principles of reasonableness

[79] Section 95.1 of the CTA states, “[w]hen constructing or operating a railway, a railway company shall cause only such noise and vibration as is reasonable, taking into account (a) its obligations under section 113 and 114, if applicable; (b) its operational requirements; and (c) the area where the construction or operation takes place.”

[80] The Agency has found that the noise due to idling, switching, and whistling during switching operations at the Interchange Point constitutes substantial interference; therefore, the Agency must now determine if the noise is reasonable, as set out in section 95.1 of the CTA.

Obligations under sections 113 and 114 of the CTA

[81] Sections 113 and 114 of the CTA set out the railway company’s level of service obligations, generally referred to as “common carrier obligations.” Under these sections, a railway company must furnish, according to its powers, adequate and suitable accommodation for the receiving, loading, carrying, unloading and delivering all traffic offered for carriage on its railway. More specifically, paragraph 113(1)(c) of the CTA provides that a railway company shall, without delay, and with due care and diligence, receive, carry and deliver the traffic.

Idling

[82] The Agency notes that CSXT has not claimed or demonstrated that the crew changes must take place at the Interchange Point in order to meet its level of service obligations.

Switching

[83] CSXT claims that it is required to perform switching operations at the Interchange Point in order to meet it level of service obligations to local customers, and that these obligations require CSXT to switch rail cars during the night to meet its customers’ delivery requirements.

[84] In Decision No. 273-R-2012 (Russel Metals, Inc. v. the Canadian Pacific Railway Company), the Agency stated that the evidentiary burden is “the burden of going forward with evidence… [and it] will be discharged by adducing or pointing to evidence which, if accepted, is sufficient to support one’s position.” The Agency notes that CSXT has not provided any evidentiary basis beyond its statement to support its claim. CSXT did not submit any information related to the names and location of the customers, the delivery or pick up requirements for these customers or any other information that would establish that CSXT has an obligation under sections 113 and 114 of the CTA that requires it to switch traffic at the Interchange Point, particularly at night. The Agency, therefore, finds that CSXT has failed to establish that it is required to perform switching operations as it currently does at the Interchange Point in order to fulfill it level of service obligations to local customers.

Operational Requirements

Idling

[85] The Agency notes that trains are left idling at the Interchange Point in order to allow interchange with CN, which involves crew changes. With respect to the time required to effect crew changes, CSXT only made a general reference to unspecified operational requirements to be completed, without providing any details as to what needs to be done and the time needed to do so. Although the Agency accepts that crew changes in an interchange situation cannot be done instantaneously, the Agency is of the opinion that no operational crew change requirements could possibly explain or justify the parking of trains for the extended periods such as those recorded in the logs submitted with the complaints. In any event, CSXT recognized that if proper co-ordination of crew change is done, trains should be moved within an hour or two after being parked at the Interchange Point. Further, CSXT does not provide an explanation for the extended periods of idling.

[86] In these circumstances, the noise caused by idling trains at the Interchange Point cannot be considered to be “normal noise emanating from operations required for the running of a railway and the transportation of freight” as claimed by CSXT; rather, CSXT is causing more noise than would be caused if it operated its interchange activities diligently. The Agency finds that CSXT has failed to demonstrate that there are any operational requirements justifying the idling of trains to the extent that the complainants have experienced.

[87] The Agency therefore finds that CSXT has failed to demonstrate that its operational requirements require it to leave engines idling for more than two hours at the Interchange Point.

[88] CSXT claims that no other location is suitable for interchanging traffic with CN and that CSXT has evaluated and eliminated all other potential locations in the Montréal area. However, CSXT only submitted a rationale justifying that the Interchange Point was suitable to accommodate its needs; it did not provide any evidence that there are no other suitable locations or why the alternative locations considered did not meet CSXT’s switching criteria.

[89] The Agency finds that CSXT has not established that the Interchange Point is the only suitable interchange location in relation to its traffic between Montréal and Massena. In fact, evidence submitted by CN indicate that two other locations are currently used as interchange points between CN and CSXT and that these other locations are used to interchange trains that are longer than 50 rail cars. The Agency, therefore, finds that CSXT has failed to establish that is has an operational requirement to interchange traffic at the Interchange Point. Thus, it has also failed to demonstrate that the noise emanating from the locomotive engines left idling at the Interchange Point is justified by CSXT’s operational requirements, related to its interchange operations.

Switching

[90] CSXT submits that it performs minor switching operations at the Interchange Point at night for safety reasons and to meet local customer delivery requirements. CSXT claims that by performing the switching operations at night, CSXT is limiting interruptions at the public crossing, which increases public safety and the quality of life for local residents. However, as the Agency concluded above, CSXT has not substantiated its claim about local customers’ requirements. Further, CSXT did not file any description of the switching operations, the number and types of equipment used, supporting information on alternate locations or methods of operation to satisfy its operational requirements, and the level of roadway traffic. Thus, CSXT has also failed to demonstrate that the noise resulting from the switching operations at the Interchange Point is justified by CSXT’s operational requirements.

Whistling

[91] As set out above, the Agency may intervene with respect to whistling when it finds it to be excessive or abusive and not sounded for safety reasons. The Agency may specifically intervene when it finds that the whistling is due to unnecessary or inefficient rail operations, in which case, the whistling cannot be considered reasonable as it is not based on necessary railway operational requirements.

[92] Whistling is required at a public at-grade crossing when an incoming train approaches. As set out in Rule 14(l)(i) of the CROR, the whistle must be sounded regularly as the train is approaching the crossing up until the crossing is fully occupied. However, in the present case, the public at-grade crossing is being crossed multiple times during the switching of traffic.

[93] In this case, the Agency already concluded that CSXT has failed to demonstrate that switching must take place at the Interchange Point in order for CSXT to meet its level of service obligations or that such constitutes an operational requirement. As the whistling is done in relation to switching activities that are not operationally required, it follows that CSXT is also causing unnecessary whistling when switching cars at the Interchange Point.

[94] Further, in Decision No. 35-R-2012, the Agency found that noise and vibration during the night can cause a higher degree of disturbance to persons than during the day. In this case, the Agency has found that CSXT has failed to demonstrate that switching must take place at the Interchange Point at night due to level of service obligations or operational requirements. As the whistling is a result of the switching operations, the Agency also finds that CSXT has not established that the noise from whistling must take place at the Interchange Point at night due to operational requirements.

Area

[95] The complainants live in a residential area and their residences are within 20 and 30 meters of the Interchange Point. As stated above, other than noise from railway company operations, there are no other significant sources of noise in the area. The Agency agrees with CSXT that, as the area where the complainants live is near a main line track, noise from railway operations should be expected. However, the Agency finds that locomotives left idling for extended periods of time, and switching operations, particularly at night, should not be expected at a location where it is not operationally required or required due to common carrier obligations. Prior to 2004, when the interchange point was located in Massena, the complainants did not contact CSXT about any noise and vibration issues due to operations near their residences. CSXT has not provided any evidence to suggest that it has considered the area or the possible adverse effects on the complainants when it moved its interchange point and switching operations from Massena to the Interchange Point.

Wheel rail interface

[96] Mr. Chaput indicates in his application that he was experiencing noise and vibration due to wheel/rail interface. No pleadings were filed on this issue by the parties; therefore, the Agency cannot make a finding on whether the noise and vibration due to wheel/rail interface constitutes substantial interference. The Agency, therefore, dismisses Mr. Chaput’s complaint as it relates to noise and vibration due to wheel/rail interface.

CONCLUSION

[97] The Agency finds that the noise due to idling locomotives, switching operations, and the resulting whistling constitute substantial interference and that such noise is not operationally required or required in order to meet level of service obligations. Therefore, the Agency finds that CSXT’s interchange and switching activities at the Interchange Point are not being operated in accordance with CSXT’s obligation under section 95.1 of the CTA. The Agency, therefore, finds that CSXT has failed to comply with its obligation to only cause such noise as is reasonable within the meaning of section 95.1 of the CTA.

DIRECTION TO SHOW CAUSE

[98] Before making a determination on mitigation measures, the Agency directs CSXT to show cause why the Agency should not order CSXT to:

  1. relocate its interchange to a location other than the Interchange Point or, in the alternative,
  2. strictly adhere to the dispatching procedures set out in CSXT’s pleadings in order to reduce idling time to a maximum of two hours and to set up an idling activity monitoring program, mitigation strategy, and threshold targets based on WHO standards to be submitted to the Agency for review or, in the alternative,
  3. modify current operations in Huntingdon by parking idling engines farther away from sensitive receptors and to set up an idling activity monitoring program, mitigation strategy, and threshold targets based on WHO standards to be submitted to the Agency for review; and
  4. cease all switching operations on CSXT’s tracks at the Interchange Point or, in the alternative,
  5. only conduct its switching operations exclusively during the day and to set up a switching activity monitoring program, mitigation strategy, and threshold targets based on WHO standards to be submitted to the Agency for review.

[99] CSXT is required to respond to the above-noted direction by February 19, 2013, with a copy to the complainants.

[100] The complainants will have five business days from receipt of CSXT’s response to file their comments with the Agency, with a copy to CSXT. CSXT will then have 3 business days from receipt of the complainants’ comments to file any comments it may have. The Agency will then assess the information and make its final decision on this matter pursuant to section 95.3 of the CTA.

[101] Should you have any questions relating to this case, you may contact Krista Warnica, by telephone at 819-953-9928, by facsimile at 819-953-5564, or by e-mail at Krista.warnica@otc-cta.gc.ca.


[1] The Auxiliary Power unit (APU) system keeps the main engine warm while the main engine is shut down. The Auto Engine Power Start Stop (AESS) system automatically shuts down idling engines and restarts them when needed to maintain temperature, battery voltage, and air brake pressure.

Member(s)

Raymon J. Kaduck
Geoffrey C. Hare
Date modified: