Rail Noise Issues-Commissioner/Wall Street - report dated January 23, 2001

ADMINISTRATIVE REPORT

Date: January 23, 2001
Author/Local: D. Losito/714-5677

RTS No. 01585

CC File No. 3755

P&E: February 15, 2001

TO:

Standing Committee of Council on Planning and Environment

FROM:

Director of Environmental Health

SUBJECT:

Rail Noise Issues - Commissioner/Wall Street

RECOMMENDATIONS:

A. THAT Council request Canadian Pacific Railway, and by extension the West Coast Express, to cease using train whistles at the controlled crossing located at the north foot of Victoria Drive.

B. THAT Council communicate to the Canadian Transportation Agency the City's strong support of the Wall Street Area residents' request for mitigation of the noise impacts from the CP Railway activities in the vicinity of Wall Street, including the elimination of whistling at the Victoria Drive crossing.

C. THAT, should the efforts under A and B fail to address the whistling noise at Victoria Drive, staff report back with recommendations on the options available to address insurance and liability issues related to the prohibition of whistling at Victoria Drive.

GENERAL MANAGER COMMENTS

The General Manager of Community Services RECOMMENDS approval of A, B & C .

CITY MANAGER'S COMMENTS

The City Manager notes the importance of this issue for the residents adjacent to the rail yard, and supports the Canadian Transportation Agency (CTA) and/or Canadian Pacific Railway (CPR) eliminating whistling in this location. This issue is clearly within the CTA and/or CPR mandate and as such the City should not get involved accepting any liability whether by insurance, which may not always be available, or otherwise. Therefore, the City Manager recommends A and B, but does not recommend C.

COUNCIL POLICY
Council has previously approved anti-whistling by-laws, including portions of the Riverside development and the Arbutus Corridor.
Council endorsed recommendations of the Urban Noise Task Force, including the following railway noise provisions:

19.1 The City should continue to monitor problem areas, such as Gastown and East Vancouver, especially with regard to shunting.

19.2 The City should initiate an investigation into the excessive use of whistles by the West Coast Express.

PURPOSE

This report seeks to address some railway noise issues in the Wall Street neighbourhood by proposing adoption of an anti-whistling resolution for Victoria Drive and confirmation of the City's support for community action through the Canadian Transportation Agency to address other unresolved rail noise issues.

BACKGROUND

Railway noise has been an issue in a number of neighbourhoods in the City and was raised as an issue in the Urban Noise Task Force report. For example residents of the Mt. Pleasant area are currently voicing concerns about train shunting noise from the False Creek flats. Unfortunately, rail noise cannot be directly regulated or mitigated through City by-laws, as railway activity comes solely under the jurisdiction of the Federal government.

Since early 1997, the residents of the Wall Street area adjacent to the tracks from Victoria Drive to North Renfrew Street have been complaining of excessive noise from the increased train activity in the area. A variety of noise sources contribute to the disturbances, including horns (whistles), shunting and locomotive noise. In part the increase in complaints is attributable to the increase in rail activity to service the expanded Cascadia grain terminal, as well as other customers along Commissioner Street and to operational changes made by CP Rail.

The residents of the area have been making representations to CP Rail in terms of the overall problem, but they feel that CP Rail is slow in responding, if at all. Council has received copies of various pieces of correspondence addressed from the neighbourhood coalition to CP Rail, and copied to their local MP, Libby Davies, as well as the Health Board. Interventions by MP Davies and the Noise Control Officer of the Health Board have had limited effect, resulting in the resolution of only a few minor noise issues.

DISCUSSION

Although the City is not in a position to directly address the locomotive and shunting noise issues, there is a mechanism to mitigate the train whistle noise at the Victoria Drive crossing. City Council has, over the past 15 or 20 years, taken action to prohibit train whistling in urban areas by passing "anti-whistling" bylaws for controlled crossings in specific locations (e.g. the Arbutus Corridor). These were passed under provisions of the old Railway Act. The legislation has changed (now the Railway Safety Act) and is administered by the Canadian Transportation Agency under Transport Canada. The new Railway Safety Act does not contain any direct reference to whistling, but this is governed through a rule (14L) of the newly established Canadian Rail Operating Rules (CROR), which, having been approved by the Minister or Transport, have the force of regulations under the Railway Safety Act. This rule obliges railways to whistle in advance of all public railway crossings, except as prescribed by "Special Instructions". Transport Canada takes the position that the railways are free to issue special instructions provided that the affected crossings meet the requirements of a Transport Canada guideline. This guideline, in effect, calls for municipalities to deal directly with the railways and to achieve a consensus on whistling.

Since this new approach does not involve the regulatory agency (CTA) and the guideline does not have the force of law, there are some important liability implications. If individuals suffer loss or damage as a result of a crossing accident, both the railway and the municipality could be put in a position of havingto defend the decision to cease whistling. To address the liability issue, CP Rail must ensure that both the municipality and the railway comply with the guideline set out by Transport Canada.

Since the question of liability is not resolved by simply following the guideline, the railway takes the position that they must ensure satisfactory liability insurance is in place to protect both itself and the municipality from third party claims. The resultant agreement, should the City decide to proceed, is renewable annually with the cost of the insurance shared between the railway and the municipality. Cost of the insurance is determined on an annual basis by insurance underwriters for the railway, with the City's share currently estimated at $300-$500/year. CP Rail has indicated that the option of the City self-insuring against their share of the liability is a possibility as they have entered into negotiations with other local governments on a similar agreement.

Should Council decide to pass a resolution asking CP Rail to cease whistling at Victoria Drive, then a CP Rail District operating officer will examine the crossing and confirm whether it is appropriate to eliminate whistling at this crossing. Subsequently, CP Rail will arrange for a Transport Canada safety inspector to inspect the crossings and advise whether or not the proposal meets the Transport Canada anti-whistling guideline. Initial indications are that the Victoria Drive crossing should meet the guideline, given the current mechanical barriers in place.

Comments of the Director of Risk Management:
The Director of Risk Management questions the need for the City to enter into a liability agreement with CP Rail, thereby assuming some of the liability generated by an activity not directly undertaken by the City (railway activity). Although the Director of Environmental Health is correct in noting that City Council has previously passed anti-whistling by-laws, it is questionable whether such initiatives would have been supportable from a risk management perspective had such a program been in place at the time those by-laws were enacted.

The Director of Risk Management therefore suggests that Council should only adopt Recommendation A to deal with the Victoria Drive crossing. Further, by adopting Recommendation B, Council would place its support behind the formal mitigation requests of the Wall Street Area residents, inclusive of the cessation of whistling at Victoria Drive, through the Canadian Transportation Agency. It is hoped that an order from the CTA would negate the need for a liability/insurance agreement with the railway.

Comments of the General Manager of Engineering Services:
The rail crossing at Victoria Drive has recently been upgraded for safety reasons, partially because of the use of these tracks by West Coast Express. As a consequence of this request, there will be two further inspections scheduled, by CP Rail and by Transport Canada. Through this process I expect that any outstanding safety issues can be addressed. Accordingly, I support the motions, noting that there may be future costs to share in safety upgrades and insurance premiums.

Taking the noise and liability issues into consideration, staff are recommending that the City should proceed to request the cessation of whistling at the Victoria Drive crossing. This request should also be incorporated into the City's strong support for the petition for mitigation submitted by the Wall Street Residents to the Canadian Transportation Agency. Should these two actions fail to result in a cessation of whistling at the Victoria Drive crossing, staff is requested to report back on the necessary liability and insurance requirements and implications.

Unfortunately, the "private" crossings further east, near Renfrew Street, are not treated in the same manner as the "public" crossing at Victoria Drive. Instead of an anti-whistling provision, staff recommends that Council strongly support the residents' request for a mitigation order from the Canadian Transportation Agency. In addition, the use of whistles as signalling systems rather than warning systems is being pursued by one of the residents directly to Transport Canada.

Other Noise Issues:
In October, 2000 the Wall Street Area residents initiated a formal complaint to the Canadian Transportation Agency requesting an order to CP Rail to further mitigate the noise impacts from recent changes to rail service in the area. Their request included the application of curfews to train marshalling activity, the limitation of engine idling, the use of less offensive locomotives for marshalling grain cars into Cascadia terminal and the prohibition of excessive whistling. A similar complaint by residents of Oakville, Ontario resulted in an order being issued to CN Rail to mitigate noise and other negative impacts. (On July 6, 1999 the Federal Court of Canada granted CN leave to appeal this order.) A FCM resolution (NTC99.3.19) was adopted in 1999 urging the Federal government to review railway legislation to allow for the legitimate concerns of citizens to be addressed.

Although the persistence of the Wall Street Area residents over the past 3 years has yielded some improvements, including reduction in the use and volume of the automatic horns and general adherence to curfews on shunting activity just below the 2800 block Wall Street, the major issues around the use of heavy locomotives to shunt into the Cascadia terminal have not been resolved. The railway seems unwilling to address the locomotive idling issue, as it would impact on their operational flexibility and scheduling. A resolution would likely involve changing back to the smaller, less noisy yard locomotives or modifying/restricting noisy activities away from late night/early morning hours.

Staff has indicated to the residents that the City would not be taking a direct or financial role in supporting their specific appeal to the CTA, but the City might lend strong moral support in terms of a Council resolution. Apparently, a Council resolution such as this carries considerable weight with the CTA.

CONCLUSION

A formal Council request to CP Rail to cease whistling at the Victoria Drive crossing will help address one of the noise impacts identified in the Urban Noise Task Force report. Council support for the Wall Street Area residents' complaint to the Canadian Transportation Agency should assist in obtaining some form of mitigation of railway noise impacts.

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