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Printable Version Guideline on Requesting Approval to Undertake Certain Railway Works is available in PDF format (file size 180kb) which will download in approximately 51 seconds on a 28.8 connection and may be viewed using Acrobat Reader. Note: Portable Document Format (PDF) formats may be viewed using version 3.0 or higher of the Adobe® Acrobat Reader. This reader may be downloaded free of charge by visiting the Adobe® web site. Table of Contents:
Appendix
Note: Users of this guide are reminded that it has been prepared for the convenience of reference only and, as such, is not legally binding. The procedures and forms recommended in this guide are provided solely as a guide and should not be quoted or considered as legal authority. Transport Canada welcomes further comments and input into future revisions of this guidance document as part of the ongoing improvement process with this as well as other publications. I. Background:Under subsection 10(1) of the Railway Safety Act1 (RSA), where a proponent wishes to undertake a proposed railway work that:
the proponent must first request the approval of the Minister of Transport (the Minister) and, if approval is received, must subsequently undertake the work in accordance with the terms of that approval. When a proponent files such a request with the Minister for the Minister’s consideration and possible approval, the proponent should provide all of the information and documentation necessary to substantiate its request and enable the Minister to determine whether the proposed railway work is consistent with safe railway operations. II. Purpose:The purpose of this guideline is to clarify:
III. Scope:This guideline is intended for all proponents wishing to undertake a railway work with respect to a line of railway within the legislative authority of Parliament for which approval by the Minister is required under subsection 10(1) of the RSA. IV. Authority:This guideline is issued under the authority of the Director General, Rail Safety. V. Definitions:For the purposes of this guideline, the following definitions will apply: "Crossing work" means a road crossing or a utility crossing. "Engineering standards" means engineering standards in place pursuant to section 7 of the RSA. "Minister" means the Minister of Transport, and includes persons authorized in writing under section 45 of the RSA to act on the Minister's behalf, as specified in the instrument of authorization. "Line work" means:
"Person" includes a government of a municipality and a road authority. "Prescribed" means prescribed by regulations. The regulations specifically referenced in this guideline are the Notice of Railway Works Regulations. "Proponent" means the person who proposes, or has proposed, the construction or alteration of the railway work, whether voluntarily or because of a requirement imposed by or under another piece of legislation. "Railway company" or "railway" means a railway company operating in Canada under the legislative authority of Parliament, and subject to the provisions of the RSA. "Railway work" means a line work or any part thereof, a crossing work or any part thereof, or any combination of the foregoing. "Road" means any way or course, whether public or not, available for vehicular or pedestrian use. "Road crossing" means that part of a road that passes across, over or under a line of railway, and includes any structure supporting or protecting that part of that road or facilitating the crossing. "RSA" means Railway Safety Act, R.S.C. 1985, c.32 (4th Supp.). "Utility crossing" means that part of a utility line that passes over or under a line of railway, and includes any structure supporting or protecting that part of that utility line or facilitating the crossing. "Utility line" means any wire, cable, pipeline or other like means of enabling the transmission of goods or energy or the provision of services. VI. Assumptions:This guideline has been developed based on the following assumptions:
Note: Failure to provide all necessary information and documentation might result in the request being refused or its processing delayed. VII. Required and Recommended Information:When a proponent files a request to undertake a proposed railway work in accordance with subsection 10(1), there is particular information and documentation that the proponent is required to provide by the RSA, as well as additional information and documentation that Transport Canada recommends that it provide, to substantiate its proposal and facilitate the Minister’s assessment of it. Required Information:With respect to required information, a proponent must provide the Minister with the following information and documentation:
Note: Section 11 of the RSA requires the following: "All the engineering work relating to railway works, including design, construction, evaluation or alteration, shall be done in accordance with sound engineering principles. A professional engineer shall take responsibility for the engineering work." Recommended Infomation:With respect to recommended information, to facilitate the Minister’s assessment of whether a proposed railway work would be consistent with safe railway operations, it is strongly recommended that the proponent also provide the Minister, at the time of filing, with the following information and documentation: Notice:
Note: Although the RSA does not require railway companies to provide the Minister with its responses to objections received after the end of the specified period during which time objections may be filed, in the interest of promoting railway safety they may wish to do so in some circumstances (e.g., when new safety information is provided). Environmental Assessment:
Risk Assessment:
Note: It is recommended that the proponent utilize the Canadian Standard Association (CSA) Standard CAN/CSA-Q850-97 Risk Management Guideline for Decision-Makers, as amended from time to time. The CSA guideline is intended to assist decision-makers in effectively managing all types of risk issues, including injury or damage to health, property, the environment, or something else of value. Other risk assessment methodologies may also be used. VIII. Consideration of the Request:When a request for approval of a proposed railway work is filed with the Minister under subsection 10(1) of the RSA, the Minister considers whether, having regard to the information provided by the proponent in accordance with the requirements of the RSA and any other factors that the Minister deems relevant, the proposed railway work is consistent with safe railway operations. In making this determination, the Minister may take into consideration the required and recommended information outlined above and any other factor the Minister considers relevant, such as whether:
Under the RSA, the Minister has an assessment period of 60 days to consider the request and notify the proponent and any objecting party of the Minister’s decision.10 This assessment period begins on the day a complete request (i.e., one that includes all of the mandatory accompanying documentation) is received by the Minister. TC Rail Safety may contact the proponent to discuss its proposal after it has been filed (e.g., to request further information or clarification with respect to the proposal or its supporting documentation). If TC Rail Safety determines that it requires further information to evaluate such a proposal, it seeks to request that information in a timely manner. A proponent may likewise contact TC Rail Safety officials to discuss its proposal after filing it. However, if a proponent chooses to contact TC regarding its proposal, it is advised to seek to complete such discussions at least ten (10) working days before the end of the assessment period; after which time, additional information might not be accepted. If, before the end of the 60-day assessment period, the Minister determines that, by reason of the complexity of the work, the number of requests filed or any other reason (e.g., to provide a railway company additional time to provide further information requested by TC Rail Safety), it will not be feasible to consider the proposal before the expiration of that period, the Minister may, by notice, extend the assessment period to any time in excess of 60 days that is specified in the notice. The Minister’s decision will be conveyed to the proponent and each party that objected to the proposed work, in the form of a notice. If the Minister is satisfied that the proposed railway work is consistent with safe railway operations, and therefore decides to approve it, the notice may specify terms on which the work is being approved. Terms so specified are binding on the proponent in undertaking the work. Before recommending that the Minister approve a proposed railway work on certain terms, TC Rail Safety may, when practicable and appropriate, endeavor to contact the railway company to inform it of those possible terms and conditions. An approval of a proposed work is in force for limited period of time. Such an approval, does not authorize the commencement of that work after the expiration of either: the period specified in the notice of approval; or, if no period was specified in the notice, one year after the approval was given. If the Minister is not satisfied that the proposed railway work is consistent with safe railway operations, the Minister may decide to:
If the proponent fails to file required further particulars within the period set out in the notice, it shall be deemed to have withdrawn its request for approval of the work. Alternatively, if the proponent does file the further particulars within the period specified in the notice, the request for approval is considered to have been filed with the Minister only at the time when the further particulars were filed, thereby starting a new 60-day assessment period. IX. Administrative Suggestions:The following suggestions are offered as a means of facilitating the administrative processes associated with a request for Ministerial approval of a proposed railway work under subsection 10(1) of the RSA:
X. Contact:Questions, comments or suggestions on improving this guideline should be directed to the office of: Mr. Don Pulciani Appendix I: Engineering standards made under subsection 7(2), 7(2.1)The following are engineering standards made under subsection 7(2) or subsection 7(2.1) of the RSA and approved under paragraph 19(4)(a) of the RSA:
The following are regulations issued before the coming into force of the RSA in 1989, some of which contain provisions concerning engineering standards:
Appendix II: Environmental AssessmentCanadian Environmental Assessment ActThe Canadian Environmental Assessment Act (CEAA) requires federal decision makers (i.e., "responsible authorities") to consider the environmental effects of certain proposed projects before taking any actions that would allow such projects to go ahead. Transport Canada (TC) must ensure that an environmental assessment (EA) is conducted in accordance with the requirements of the CEAA for all projects:
A project is either:
Four types of EA are possible under CEAA: screenings; comprehensive studies; panel reviews; and, mediations. In practice, all EAs are conducted as screenings unless: otherwise required by Comprehensive Study List Regulations15; or, the Minister of Environment decides to proceed with a panel review or mediation. As a result, the vast majority of federal EAs are conducted as screenings. For more information on CEAA please refer to the Canadian Environmental Assessment Agency’s Primer For Industry guide located on the Agency’s website at http://www.ceaa.gc.ca/012/001/index_e.htm. Subsection 10(1) Railway Safety Act – CEAA TriggerPursuant to paragraph 5(1)(d) of the CEAA, a request for Ministerial approval of a proposed railway work under subsection 10(1) of the Railway Safety Act (RSA) is a trigger for an EA. Therefore, pursuant to subsection 11(2) of the CEAA, TC is not permitted to grant an approval under subsection 10(1) of the RSA unless it first takes a course of action pursuant to paragraph 20(1)(a) of the CEAA for Screenings, or 37(1)(a) for Comprehensive Studies. Notwithstanding the above, a proposed project would not require an EA to be completed under CEAA if it is described in the Exclusion List Regulations. Environmental Assessment - Screening ProcessThe following outlines the general process for screening level assessments of proposed railway works in accordance with CEAA. 1. The proponent submits a Project Description for its proposal to Transport Canada. It is recommended that the proponent file its Project Description as early as possible to facilitate the commencement of the EA process that is required under the CEAA.16 2. TC reviews the proponent’s Project Description and determines whether it has a decision-making responsibility that triggers the need for an EA of the project. The majority of railway projects submitted for approval under subsection 10(1) of the RSA are expected to trigger the need for an EA screening to be conducted. 3. If TC determines that there is a requirement for an EA to be conducted, it will notify other federal authorities that are likely to exercise a power with respect to the project or that are in possession of specialist or expert information or knowledge that is necessary to conduct the EA of the project (e.g., Environment Canada, Health Canada). 4. TC determines the Terms of Reference (TOR) for the EA that is to be conducted, specifically: the scope of the project; the factors to be considered; and, the scope of those factors. The TOR are generally incorporated into a Scoping Document, which is prepared by TC and then forwarded to the project’s proponent. This will be done in coordination with other Responsible Authorities (RAs) and expert federal departments, when determined necessary. 5. The proponent should use the Scoping Document as a guide for what TC expects to be covered in the EA report. Notwithstanding, TC may identify further factors or issues during the EA process, which the proponent will also be expected to assess. 6. The proponent conducts the EA and submits an EA report to TC for review and comments. TC will review it in coordination with the other RA(s) and expert federal departments when determined necessary. 7. Depending on the nature of the proposal, and the issues surrounding its implementation, TC may request the proponent to provide the public an opportunity to review and comment on the proponent’s EA report. 8. The proponent will be expected to respond appropriately to comments received from TC, and other interested parties (the public). Further information requests may be issued to the proponent if TC determines that the EA report is not adequate or that certain issues require clarification. The proponent will be expected to respond appropriately. 9. TC will take the following into consideration when making its EA determination pursuant to paragraph 20(1)(a) of the CEAA: the EA report submitted by the proponent; comments filed by the public pursuant to subsection 18(3) of the CEAA; and, input received from other federal authorities in possession of specialist or expert information or knowledge. This will be done in coordination with the other RA(s) for the project, if any. 10. TC renders its decision under Section 20 of CEAA. If there are other RAs involved, they will be required to make their own independent Section 20 determinations. Appendix III: Rail Safety - Contact InformationRegional Offices:AtlanticRegional Director OntarioRegional Director QuébecRegional Director Prairie & NorthernRegional Director PacificRegional Director Headquarters:Director, Safety Policy & Regulatory Affairs Appendix IV: Summary of Relevant RSA Provisions
Notes: 1. More information on the RSA can be found at: http://laws.justice.gc.ca/en/R-4.2/index.html 2. Applicable engineering standards approved by TC are listed in Appendix I. 3. http://www.tc.gc.ca/acts-regulations/GENERAL/R/rsa/regulations/020/rsa026/rsa26.html 4. It should be noted that in accordance with the Canadian Environmental Assessment Act (CEAA), before the Minister can make a decision with respect to a request under subsection 10(1) of the RSA, the Minister must confirm whether an environmental assessment (EA) is required. If so, the Minister cannot continue processing the request until the EA is completed; in which case, the time limits set out in the RSA would not begin until after the EA was completed and the Minister has determined that the project is not likely to have significant adverse effects. For more information on CEAA, see Appendix I. 5. Refer to the Guideline - Engineering Work Related to Railway Works (Section 11- RSA) available at the following web site http://www.tc.gc.ca/railway/RSA/RSA_english.htm. 6. Proponents are also required, under the Notice of Railway Works Regulations (http://www.tc.gc.ca/acts-regulations/GENERAL/R/rsa/regulations/020/rsa026/rsa26.html) , to provide a copy of the notice to the Director of the regional Railway Safety Directorate office having jurisdiction over the railway at the location of the proposed works. 7. Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, http://laws.justice.gc.ca/en/c-15.2/sor-97-181/index.html ; for more information on CEAA, see Appendix I or visit http://www.ceaa-acee.gc.ca. 8. Refer to Guideline entitled Engineering Work Related to Railway Works (Section 11- RSA), available at the following web site http://www.tc.gc.ca/railway/RSA/RSA_english.htm 9. Refer to RSA subsection 4(5) regarding the manner of filing or sending notices 10. Note: as mentioned above, before the Minister can make a decision with respect to a request under subsection 10(1) of the RSA, the Minister must confirm whether an EA is required in accordance with CEAA. If so, the Minister cannot continue processing the request until the EA is completed; in which case, the assessment period set out in the RSA would not begin until after the EA was completed and the Minister has determined that the project is not likely to have significant adverse effects. For more information see Appendix I. 11. Similarly, before ordering a railway company to formulate or revise rules under s. 19 of the RSA, TC Rail Safety may, when practicable and appropriate, endeavor to contact the railway company in a timely manner to initiate dialogue on the proposed rule/revision to a rule. 12. Regulations Respecting The Coordination By Federal Authorities Of Environmental Assessment Procedures And Requirements available at the following web site http://laws.justice.gc.ca/en/c-15.2/sor-97-181/index.html 13. http://laws.justice.gc.ca/en/c-15.2/sor-94-639/66259.html 14. http://laws.justice.gc.ca/en/C-15.2/SOR-94-637/index.html 15. http://laws.justice.gc.ca/en/c-15.2/sor-94-638/223873.html 16. Proponents should refer to the Canadian Environmental Assessment Agency’s Operational Policy Statement on “Preparing Project Descriptions under the Canadian Environmental Assessment Act” for guidance on what information should be contained within a ‘Project Description’. This document is located on the Agency’s website: http://www.ceaa-acee.gc.ca/013/0002/ops_ppd_e.htm.
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