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Decision No. 233-R-2000

With Order No. 2000-R-102

March 31, 2000

IN THE MATTER OF a complaint filed by Steve Robinson pursuant to section 95 of the Canada Transportation Act, S.C., 1996, c. 10, concerning noise in the Algoma Central Railway Inc.'s loading yard located near a residential area in Sault Ste. Marie, Ontario.

File No. R 8030/S9

On September 7, 1999, Steve Robinson (hereinafter the complainant) filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) regarding the noise emanating from the log loading operations onto Algoma Central Railway Inc.'s (hereinafter ACRI) rail cars near a residential area of Sault Ste. Marie, Ontario.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until April 1, 2000.

The issues to be addressed by the Agency are whether it has the jurisdiction under section 37 and subsections 95(1) and (2) of the CTA to consider Mr. Robinson's complaint and if so, whether ACRI, 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.

The ACRI loading track opposite the residential area is identified as Track 594 and is currently being used by Timber Forest Products (hereinafter TFP). ACRI has a pool of rail cars (usually 4 or 5 cars in total) designated for exclusive use by TFP. Once the cars are loaded at Track 594, TFP issues a Bill of Lading to ACRI for movement to destination. When the cars are unloaded at destination, they are automatically rescheduled back to Track 594.

ACRI's property limit for its right of way is at the easterly limit of Track 594. ACRI switches empty rail cars onto the loading track for loading by TFP and once loaded, ACRI removes the loaded rail cars to its main yards for further movement. Although all trackage is on the ACRI right of way, the equipment which loads the logs belongs to and is located on TFP's property.

TFP property is zoned light industrial while the affected residential area is zoned residential.

The complainant expresses his concerns about the noise level of ACRI and the logging operations which have moved from the proximity of another residential area to a location across from his residential area. He indicates that he has called the Sault Ste. Marie Police Department a couple of times due to the noise from the loading and unloading of logs and because of the City of Sault Ste. Marie noise by-laws, the police were able to stop the operations for a day or two. However, the operations would inevitably start back up.

ACRI submits that it has no control over the logging operations which take place in the loading yard opposite the complainant's residence. The logging operations have been in existence for some time and are operated by TFP. ACRI has no direct control over the activities which take place thereon. ACRI simply provides rail cars to TFP as it does to other customers. ACRI further submits that TFP operations are governed by municipal noise by-laws and that the complainant should withdraw his complaint with the Agency.

The complainant states that the log unloading operations and log piles are on TFP property but the actual loading of rail cars is conducted on ACRI property. He submits that there is a significant increase of activity in the area and that the noise of loading and unloading of rail cars is at all hours of the night and day. He claims that the loading continues at sporadic times and even occurred through the Thanksgiving holiday weekend. He further submits that Train No. 1567 was left idling in front of his home emitting diesel smoke and engine noises for most of an early morning after which the log loading started again.

ACRI reiterates that the activities which allegedly give rise to the noise complaint are taking place on private property and ACRI does nothing other than deliver and pick up rail cars from the siding; therefore, the Agency has no jurisdiction in this matter. The complaint should be made within the context of the City of Sault Ste. Marie's noise by-laws. Notwithstanding, ACRI has, in the context of another complaint, forwarded correspondence reminding logging operators, including TFP, of their obligation to comply with municipal noise by-laws. Furthermore, ACRI indicates that the matter of noise complaints was discussed with TFP on May 19, 1999, at which time TFP indicated that it would comply with the municipal noise by-laws.

On January 20, 2000, the Agency requested that ACRI provide additional information in respect of the logging operations, including a clear plan of ACRI tracks, a description of all TFP and ACRI operations, a copy of the municipal noise by-laws and the actions it has taken to ensure that the reloading activity occurring on its property causes as little damage a possible. The complainant was also requested to clarify what aspects of the operations are causing the noise, how the noise affects him and his family, what actions he expects ACRI to take and his interactions with TFP and the City of Sault Ste. Marie.

In response, the complainant submits that the loading of logs onto ACRI's rail cars creates a noise likened to the dropping of rocks into an empty steel drum, which can be heard through the day and night. He states that ACRI should stop loading logs in front of any homes and that he forwarded letters of complaint to the City of Sault Ste. Marie and, on September 1, 1999, wrote to the City directly with respect to the noise from the log loading.

ACRI submits that the loading which occurs onto the rail cars takes place with a logging truck equipped with a hydraulic clam parked between the log pile adjacent to the rail siding and the siding itself where the rail cars are located. The truck and the log pile are both situated on TFP property. The only noise which emanates from the rail car is when the logs are placed onto the deck of rail cars. ACRI states that the logs are not "dumped" into the rail cars as this would cause excessive damage and wear and tear on the car.

ACRI further submits that there is significant unloading and loading activities from the logging trucks on TFP property onto various log piles and onto highway trailers. Again, ACRI points out that its involvement is that of switching cars to the siding for loading and from the siding to its main yard. ACRI states that it forwarded correspondence to TFP on October 12, 1999 and again on February 15, 2000 reminding logging operators of their obligation to comply with the municipal noise by-laws. In addition, train crews have been informed of their obligation to minimize noise during switching operations.

ACRI submits that it has done everything in its power to minimize damage in conducting its operations.

Subsections 95(1) and (2) of the CTA provide:

(1) Subject to the provisions 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:

(a) 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;

(b) 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 a railway;

(c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

(d) 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

(e) do anything else necessary for the construction and operation of the railway.

(2) 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.

ACRI, in several letters to the Agency, has taken the position that the Agency does not have jurisdiction to deal with noise complaints on private non-railway lands. The Agency agrees with this statement. However, as is evident from the information provided, the noise that is paramount to the complainant is that of the logs loading onto rail cars which are owned and operated by and located on the property of a federally controlled railway company. Therefore, based on the foregoing, the Agency determines that the noise emanating from the logs loading onto the rail cars is under its jurisdiction and, as such, it will address this complaint as one falling within the ambit of subsection 95(2) of the CTA.

The log loading operations consist of logging trucks equipped with a hydraulic clam loading logs from either the trucks or the log piles situated on TFP property onto the rail cars situated on a siding on ACRI's property. The siding is an ACRI siding on ACRI property and ACRI must place rail cars on the siding in order for the loading operations to take place. If the rail cars are not placed on the siding, the loading operations cannot take place. Therefore, the Agency concludes that this is a joint TFP and ACRI operation. Consequently, ACRI must share the responsibility of noise resulting from loading its rail cars on its property and ensure that the actions taken during the loading operations occurring on its property do as little damage as possible.

The Agency notes that there are municipal noise by-laws restricting excessive noise from industrial lands at specific times, notably at night and during holidays and that ACRI is exempt from those by-laws. The Agency also notes that the complainant's residential area is in close proximity to the industrial area and that ACRI has on several occasions reminded logging operators of their obligations to comply with the municipal noise by-laws. In this case, TFP must comply with municipal by-laws while on its property. In order that ACRI do as little damage as possible in the exercise of its powers, the Agency is of the opinion that as this is a joint TFP and ACRI operation, the actions of or failure to take action by ACRI should not contribute to a possible contravention of the municipal by-laws.

In order for the Agency to be satisfied that ACRI is doing everything in its power to do as little damage as possible, ACRI will be required to provide the Agency with an implementation plan, satisfactory to the Agency, within sixty (60) days of the order to be issued, setting out the alternatives considered by ACRI and the measures ACRI will implement to ensure that the joint TFP and ACRI loading operations occurring on its property do not contribute to a possible contravention of the municipal by-laws.

In light of the above, the Agency hereby determines that ACRI does not presently meet its obligations to do as little damage as possible in the exercise of its powers to operate its railway. However, the Agency finds that ACRI will have met its obligations in this regard if it implements, to the satisfaction of the Agency, measures to ensure that the joint ACRI and TFP loading operations occurring on its property conform to the same requirements of the municipal by-laws, which call for restrictions on noise levels between the hours of 23:00 and 07:00 or anytime on Sundays and statutory holidays.

An order to this effect will be issued.