RACKET ON THE RAILS
By Perry Bulwer, July, 2006
Don’t whistle my way again.
Neil Young – Guilty Train
Cities are indisputably noisy places. Over the last few years letters to various Vancouver newspapers reveal noise complaints involving leaf blowers and lawn mowers, power washers, garbage trucks, motorcycles, festival music, late-night bar patrons, car races, car alarms, low flying aircraft and trains. Readers may be able to add other noise sources to the list. And it seems that anyone trying to escape the racket won’t find much relief by moving to the suburbs, where some of the same problems exist.
Some people’s response to this issue is to belittle the complainers by suggesting that they are simply too sensitive and that they should move if the noise disturbs them. After all, cities are noisy places so we should just get used to it, right? This simplistic solution is no solution at all since it does not consider all the reasons why people live where they do or why they may not be in a position to move. This is why Vancouver and other municipalities have noise bylaws that attempt to control and mitigate noise pollution.
Vancouver’s noise bylaw deals with such things as barking dogs and other loud pets; two or more persons speaking above a level of ordinary conversation; sound playback and amplifier devices; musical instruments; construction sites; carpet cleaning equipment; power equipment used for lawn and garden care or in building and property maintenance; and garbage trucks. Recently, there have been suggestions that car alarms should be added to the list of controlled noise sources, although it is unclear how that could be enforced.
Most noise that emanates from within city limits can be controlled to some extent. Even some noise which originates from outside the city’s jurisdiction, but which directly affects city residents may be controlled by way of a municipal bylaw. A good example of such a bylaw concerns train whistles. There is a process that allows a municipality that is adversely affected by train whistles to implement an “anti-whistle” bylaw prohibiting the use of whistles at specific crossings. However, there are currently no statutes, regulations or bylaws anywhere in Canada that deal with all other noise pollution emanating from trains operating in close proximity to municipal neighbourhoods. Residents, including myself, of the triangular neighbourhood bordering the Port of Vancouver and bounded by Hastings, Wall and Renfrew streets found that out the hard way.
Since June 1998 I have rented an apartment that faces north towards Burrard Inlet and the Canadian Pacific Railway (CPR) tracks that run along the south shore. The north end of Victoria Drive crosses the tracks into Port land, intersecting Commissioner Street, which is a private road. The tracks and the crossing are approximately three blocks away from my place. For the first six months after moving to that location train whistles were audible, as were the bells attached to the front of each engine, but not to the level of disrupting my life in any harmful way. However, sometime during the following December or January I began to notice an increase in the volume and frequency of whistles. They began waking me up throughout the night on a nightly basis. That was the beginning of several years of serious sleep deprivation.
I took no action for the first few months, thinking that perhaps it was just a temporary aberration. I remember also thinking that maybe I was just being overly sensitive; in other words, my first action was to examine myself to see if sensitivity was a factor. However, through my own observations and by talking to neighbours, I soon realized that real changes in the operation of the trains had occurred. I would also soon learn that this was a national problem, not confined to my small corner of the country.
By April 1999 it was obvious that the relative quiet I had briefly enjoyed after moving to this location was not likely to return and so I began a series of phone inquiries to Vancouver’s Environmental Health Office, Transport Canada (TC), the Canadian Transportation Agency (CTA) and CPR. Those initial inquiries yielded very little useful information as to how I should proceed in finding a resolution to the problem. Between April and June I made approximately 20 to 30 phone calls to various CPR officials registering specific complaints about excessive whistling, but those calls did not result in any improvement.
Though my initial complaints were usually received with apparent sympathy and understanding, the more I complained the worse the problem seemed to get. It was apparent that I was headed for a fight and so I set out to arm myself with specific details of the harm I was suffering. On May 3, 1999 I began keeping a detailed log of all whistles I heard between the hours of 11 p.m. and 7 a.m.. I kept a notepad by my bed and each time I heard a whistle I recorded it. For the first few weeks I simply recorded the date and time of the whistles. My first entry simply states: 3 a.m.. I then obtained a copy of the Canadian Rail Operating Rules (the “Rules”), which prescribe the rules for sounding train engine whistles and describe the various signals used. From then on I began to record not only the time and number of whistles, but also the signal code identifying the purpose of the signal.
I maintained the log until September 17th and there are entries for almost every night of that entire four-month period. The entry for June 9 reveals what a typical night was like. At 12:35 a.m. I was jolted out of sleep by an extremely loud whistle accompanied by bells that continued to ring for one minute, upon which the whistle sounded four more times. After the last whistle, the bells continued to ring for about 2 minutes. Just when I had managed to fall back asleep, it started all over again at 1:15 a.m.. This time six loud whistles sounded, accompanied by bells that rang continuously until 1:20, when five more whistles sounded. One minute later another whistle, five minutes later two more, and five minutes after that two more. Then at 1:45 four whistles blew with bells that kept ringing until 1:55, when four more whistles sounded. The bells continued ringing for some time after that. During this one hour and twenty minute period there were seven different occasions when the whistles sounded, with at least 30 individual blasts. I estimate I lost at least 2 hours of sleep that night. This extreme nuisance continued night after night for many months, sometimes less, but often more severe than the example above.
During one of my initial telephone complaints to CPR I was informed that a new automated system for controlling train whistles had been installed a few months earlier. This information confirmed my experience of suddenly louder whistles back in December or January. When I asked if the volume could be adjusted down because it was unnecessarily loud, I was told that the volume was set by the American manufacturer according to U.S. industry standards and that there was no way to adjust it. As it turns out, this was not the first bit of misinformation I was given, apparently in the hope that I would consider further complaining to be fruitless and just give up. I am sure they realize now, five years later, that I’m not the sort of person who easily surrenders.
I was determined to know why it was necessary for the whistles to be so loud. I discovered that they could be clearly heard during the day, despite all the background noise, from as far away as the busy intersection of Hastings and Nanaimo, some ten blocks or more away. It made no sense at all that the whistles needed to be that loud, particular in the middle of the night when all else was virtually silent. Were there no regulations governing the volume of train whistles? As I found out from an official at Transport Canada, there are no Canadian regulations. Instead, the Canadian rail industry follows the standard set by the U.S. Federal Railway Association, which sets a minimum of 96 decibels at 100 feet away. I didn’t know much about decibels, but I was convinced that the whistle volume was set beyond what was reasonably needed to accomplish the purpose of the whistles in this area. Furthermore, my log revealed that many of the whistles did not conform to the Rules and thus violated s.14(ii) of the Rules, which prohibits “unnecessary use of the whistle”.
My complaints led me to the Manager of Yard Operations stationed in Port Coquitlam. I spoke to him several times on the phone and on May 12, 1999 wrote him a letter providing specific details on the nightly misery I was experiencing and requested that the volume be turned down. He replied two days later that he would send two managers to monitor the situation within the next few days. He also said he would have a mechanic look at adjusting the volume and that he would issue a memo to the train crews reminding them of the prohibition against unnecessary whistling. This seemed at the time to be a positive development, but as the next four years were to prove, it would take much more persistent pressure to achieve any sort of improvement in the situation.
A few weeks passed without any significant change in either the volume or frequency of the whistles, so I made a follow-up call on June 1 and spoke to the person responsible for adjusting the volume. He explained how the new system worked, said he was monitoring the sound levels and that he would be modifying the system to set the decibel level at 96. I was dumbfounded! Apparently the system had been set at a volume higher than what was required and no one at CPR had bothered to investigate what impact this new system would have on the hundreds of residents living near the tracks.
I continued complaining by phone and mail to no effect. I had copied my May 12 letter to the Yard Manager to CPR corporate headquarters in Calgary, and addressed the cover letter “To Whom It May Concern”, but never received any response. I could only assume that no one at the head office was concerned about this issue. Only after I addressed a letter directly to the Community Relations Manager, Lyle Berge, in Calgary did I get any response. It was entirely inadequate and unresponsive to my specific complaints. Up to this point I felt I had been ignored, misled and placated with empty promises, and after six months of sleep deprivation I was reaching the breaking point.
What I didn’t know at the time was that there was a long history of CPR ignoring or dismissing complaints by residents concerning train operations in the area, but I was learning. It had taken several months of constant complaining just to get a simple explanation and acknowledgement that the volume on the new whistle system could be adjusted. But if the volume decreased after my conversation with the Yard Manager, it was not noticeable. For the next two weeks, in fact for the entire summer until I ended my log on September 17th, and for months beyond that the whistles sounded incessantly.
On June 14, 1999, with still no satisfactory response from CPR I decided to invite the Yard Manager, who had stopped taking calls from me at his office, to join me in my sleepless state. At 1:20 a.m. that morning very loud whistles started sounding, 16 in total over the next 8 minutes. Just when I had managed to fall back asleep, they started up again at 2 a.m.. Certain that I was in for another sleep deprived night, I got up, searched the phone directory and called his home phone number. If he didn’t know who it was when he answered the phone he quickly realized it was me when he heard the whistles in the background, which come through loud and clear on the other end. To his credit he didn’t hang up on me, but listened as I explained once again the serious negative impact the whistles were having, all the while whistles were blowing to emphasis my point. However, that phone call did not change anything. That night, between 1:20 and 3:25 a.m., 47 whistles sounded. And they would continue to sound nightly, throughout the night, for many months to come.
It took four months of constant complaining through scores of phone calls, letters and emails before CPR even acknowledged that there was a problem. In an August 9, 1999 letter to me Berge wrote, “it is clear you have a concern”, but he refused to address any of my specific complaints. However, that letter did contain one bit of potentially useful information. He referred to a process whereby the City, in cooperation with CPR, could implement a whistle prohibition bylaw at the Victoria Drive crossing as long as Transport Canada’s safety requirements were in place. That letter from CPR was copied to the City’s Environmental Health Office, along with information on how the City should proceed if it chose to do so. So, as early as August 1999 the City had notice that there was a serious problem at the Victoria Drive crossing and that residents would need the City’s help in resolving it. However, what seemed at the time to be the light of day at the end of a long dark tunnel turned out to be the glaring headlights of an oncoming train, blasting whistles that no one had the will or power to stop.
One of the persons I turned to for assistance with this matter was Libby Davies, MP (NDP). It turned out that she was well aware of problems with CPR’s train operations in the area and had been actively involved with the issue for some time, even to the point of riding along the tracks with CPR officials and residents to see the situation firsthand. She immediately put me in contact with two residents, Barbara Fousek and Jim Campbell, who both have homes towards the east end of Wall Street and have long-standing disputes with CPR. Barbara had documented a decade of intolerable nuisance affecting her and other residents in the Wall St. area. These nuisances included such things as idling and revving of large engines for hours at a time causing unbearable noise and heavy vibrations shaking the foundations of houses, shunting of box cars resulting in noise similar to an explosion as two cars bang together, high-pitched screeching of train wheels that continues incessantly as trains of up to 100 cars pass by, and excessively loud whistles at the Commissioner St. crossing.
Since 1992 Barbara, and more recently Jim, had been complaining to the same CPR officials that I had complained to, with the same result. In an April 30, 1999 letter to Mayor and Council on this issue she wrote, “In fact, it appears that every time we complain the noise gets worse”. Despite the involvement of Davies and City officials, there was little progress towards ending the unbearable nuisance, so Barbara, Jim and I began to plan our next steps. We knew we weren’t the only ones affected, so one of the first things we did was hold a community meeting to determine how widespread the problem was.
In one of my phone conversations with the City’s Environmental Health Office, I was told that for each complaint they receive on a particular issue they estimate anywhere from 20 to 100 others are affected by the same problem. Between 40 and 50 people showed up to a meeting in March 2000, all with specific complaints about various train nuisances, so we knew that this was not simply a matter of individual sensitivities. Two Environmental Health Officers from the City, Al Guthrie and Nick Losito, also attended the meeting and gave assurances that the City took our concerns seriously and would do what it could to assist us. After all, the Vancouver Noise Task Force Report of April 1997 had identified train noise as a significant source of noise disturbance and recommended mitigation measures and dialogue with the appropriate bodies to resolve major issues. They also informed us of a meeting they had the day before with Berge, who claimed that CPR was mitigating the whistle disturbances by issuing directives to the engineers and by altering the volume of the whistles. I had heard these claims before and knew those measures were ineffectual.
In September 1999 I entered law school at UBC. I never expected that the nightmarish nuisance would continue throughout the next 3 years of school, which certainly didn’t make passing exams any easier. Lack of time, coupled with CPR’s continued dismissal of our complaints led me to stop complaining directly to CPR shortly after I started school, not because the disturbances ended, but because dealing with CPR over the long term achieved nothing, as Barbara’s experience proved. However, I later came to realize the importance of constant complaining when Jim forwarded an email to me he had received from a Vice-President of CPR, Pat Pender, dated February 7, 2000. Pender stated in his email: “We have made changes to try and accommodate concerns. We have not been made aware of any complaints for several months.” CPR considered the lack of further complaints as an indication that the problems had ceased. Residents saw it differently. I responded to Pender, pointing out that residents had constantly complained to CPR for several years without any satisfactory, permanent improvements. The lack of complaints at this point simply indicated that residents had essentially given up complaining to deaf ears and were ready to try other avenues of redress.
Pender’s email also revealed a tactic that CPR used against us on many occasions, namely to place the blame on residents for moving to the area in the first place. His email states: “When you made the decision to buy your relatively new house 3 or 4 years ago, its proximity to the track cannot have gone unnoticed.” Previous and subsequent communications from CPR emphasize that it has been operating in the area since 1886, implying that the railway was here first, so residents should just put up and shut up. However, the railway was not here first.
According to the City’s website, in 1863 the provincial government set aside this area for a town they expected to develop along the shore of Burrard inlet. The settlement's name was changed from New Brighton to Hastings (officially the Hastings Townsite) in 1869 to commemorate a visit to the area by Admiral George Fowler Hastings. As Hastings grew, it laid claim to virtually every first for Vancouver: first road, first hotel, first post office, first telephone, first real estate transaction, and first subdivision. This community pre-existed the railway so blaming residents for living here was disingenuous to say the least. It seems CPR had other motives for taking that tack with us. A September 1999 Resolution by the Federation of Canadian Municipalities (FCM) states: “Be it resolved that the FCM recognize land use conflicts between pre-existing residential communities and the changes of use within railway marshaling yards as an issue of national importance.” That Resolution also encouraged the federal government to review railway legislation to allow for the legitimate concerns of citizens to be addressed. As we discovered, the nuisances we face occur across the country.
In the course of our organizing and researching we became aware of a similar fight between some residents in Oakville, Ontario and Canadian National Railway (CNR). Their neighbourhood suffered from all of the same train nuisances we did and they had filed a formal complaint with the CTA in the fall of 1998. The essence of the CTA’s decision No. 87-R-1999, rendered on March 8, 1999, was that CNR was not in compliance with subsection 95(2) of the Canada Transportation Act. Subsection 95(1) of that Act sets out certain powers a railway can exercise for the purpose of constructing or operating its railway. Subsection 95(2) states that: “The railway company shall do as little damage as possible in the exercise of the powers.” The CTA found that CNR had not done as little damage as possible in the exercise of its powers and ordered the railway to undertake changes to its operations in the area to mitigate the nuisance caused to residents.
That decision encouraged us to file our own complaint with the CTA so we began organizing our evidence, collecting affidavits and circulating a petition, which over 200 people in the immediate area signed. Meanwhile, our contacts in the Oakville group informed us that CNR had appealed the CTA decision to the Federal Court of Appeal, arguing that the CTA had no jurisdiction to make the orders that it did. Undaunted, we continued our work and in late October 2000 filed a 300 page complaint, convinced that the CTA had it right in its Oakville decision.
The Court didn’t agree. Just a few weeks after filing our complaint the court held, in its December 7, 2000 decision, that the CTA has no jurisdiction over the day-to-day operations of trains which cause the noise complained of by the residents: CNR v. Brocklehurst,  2 F.C. 141 (C.A.). At paragraph 37 of the decision the Court stated: “Complainants such as the respondents still have to go through common law actions of nuisance if they allege that a railway company is making too much noise in its day-to-day operations.” After spending thousands of dollars on legal fees, the Oakville residents were told that there was no statutory relief for them and the only recourse left was to pit their limited resources in litigation against a deep-pocketed corporation.
All our hopes and expectations that CPR could be ordered by government agencies to modify its operations in our area were abruptly brought to an end by the court’s decision. The CTA would no longer consider our complaint. Instead, CTA officials encouraged us to take advantage of their relatively new mediation program. With virtually no other options other than suing CPR for public nuisance we agreed to give mediation a chance, though our years of dealing with CPR did not leave us with much hope of success.
After preliminary discussions, three mediation sessions were held in April and March 2001. On June 1, CPR’s National Director of Public Affairs, Tyra Henschel, issued a report to the residents outlining some of the changes it was making in its operations and suggesting that we take part in a community advisory panel, which supposedly would help to resolve these long-standing problems. Three days earlier, on May 28, CPR and the FCM had announced the development of a new joint community-company dispute resolution process. Although there had been some modifications in train operations, most were either ineffectual or temporary and so we believed that CPR was more interested in promoting an image of itself as a good corporate neighbour than it was in taking any concrete, permanent steps to end the nuisance. After the years of misery we had suffered, we were not interested in letting CPR use us as an example of how it was cooperating with communities to resolve disputes. We did not believe that CPR was acting in good faith in our situation and so we ended formal discussions.
We continued to hold some hope, however faint, that the federal government would rectify the CTA’s lack of jurisdiction to deal with train noise issues. In February 2003 the government introduced Bill C-26: Transportation Amendment Act. Among other things, it would have amended the Canadian Transportation Act so that the Canadian Transportation Agency would have the jurisdiction to make the kinds of decisions and orders that it did in the Oakville case. Unfortunately, parliament prorogued upon Chretian’s departure and the Martin government did not reintroduce Bill C-26, which means that we were back to the status quo where the railways can create public nuisance and citizens have no recourse other than expensive and prolonged litigation.
The only issue that currently remains possible to resolve without litigation is the whistle issue at the Victoria Drive crossing. However, in an extremely ironic turn of events, it now seems that whistles will eventually cease at that location not because of residents’ complaints, but because of the tragic events of 9/11/ 2001.
After our various communications with the City’s environmental health officers, the director of that office, Nick Losito, issued an administrative report on rail noise to City Council’s Planning and Environment Committee. The Committee considered that report on February 15, 2001 and several of us made presentations to the Committee. All Councilors sit on that Committee and although that particular Council was well know for the acrimony between its NPA and COPE members and rarely reached consensus on any matter, on this issue they were united. It was clear from their comments that many of them had also suffered from noise pollution of one sort or another and the Committee was unanimous in supporting our efforts to end all the nuisance. Unfortunately, the administrative report before the Committee did not refer to the Federal Court decision stripping the CTA of any power to resolve our problems. Although I presented this information to the Committee, in the end the recommendations approved by Council relied heavily on CPR being willing to cease whistles at the mere request of Council and wrongly assumed that the CTA continued to have jurisdiction in the matter. I also informed the Committee that I had met personally with three officials from Transport Canada who had assured me that all the major safety requirements were already in place at Victoria Drive to institute a whistle prohibition.
As early as August 1999 the City was aware there was a problem at the Victoria Drive crossing and that CPR was willing to consider entering into an anti-whistle arrangement with the City. All along the City had the ability the pass an anti-whistle bylaw and had done so previously, for example, at the crossing at Arbutus and Broadway. Where such a bylaw is in place, the railway and municipality usually share liability insurance. Losito’s administrative report estimated that the City’s share of insurance would cost between $300 to $500 annually. Despite this relatively low cost of providing hundreds of residents with relief from the noise, the City’s Director of Risk Management recommended against the City entering into a liability agreement with CPR. Council requested further staff reports on the issues of insurance and liability, and residents were left to endure more sleepless nights.
I waited for movement from the City on this issue, and waited and waited. Every few months I would send email inquiries asking about the progress of the staff reports, and I was always given one excuse or another for the delay. Occasionally, I would send an email to Mayor and Council, hoping I would get someone’s attention who could help move this matter forward. The only Councilor to ever reply to my emails was Tim Louis, which remains the case with the current Council. He would forward my email to staff who would then provide me with more excuses for the delay.
Two years passed with no staff report issued or any indication from the City that it intended to pass an anti-whistle bylaw. Suddenly, sometime in the late winter or early spring of 2003 changes began occurring at the Victoria Drive crossing. A new turn lane was built at the intersection of Powell and Victoria for eastbound traffic turning north at Victoria and crossing over the tracks. New traffic signals were also installed at the intersection that indicate when the crossing is closed due to an oncoming train. Shortly after that work was done, temporary barriers were set up on both sides of the tracks to prevent all vehicles from crossing. These two developments seemed to be at cross-purposes, nevertheless, I was encouraged that something was finally happening. I just didn’t know what.
Although it was well know among all the parties that I was the primary contact among the residents on the whistle issue, no one made an effort to inform me about what was happening. To get some answers, I sent a letter on June 26, 2003 to Mayor and Council, and every railway and government official I had contact with over the years. I pointed out the absurd situation that now existed, where vehicles no longer cross the tracks, but that whistles continue to sound even though all of Transport Canada’s safety requirements, and more, are in place to allow for the cessation of whistling. Those requirements include warning signs, flashing lights, bells and two electronic gates. As I pointed out in my letter, with all those safeguards it is virtually impossible for a pedestrian or cyclist not to know a train is approaching even without whistles, yet the whistles continue to sound as usual.
As a result of that letter I was contacted by the City’s engineering department and finally given an explanation. Because of security concerns, in part related to 9/11, the Vancouver Port Authority was in the process of restricting access to the Port. The closure of the Victoria Drive crossing was part of that larger security plan, and the Port intended to build some sort of security installation at that crossing. The installation had to be built on portions of City land, so the Port and the City needed to enter into a licensing agreement for that purpose. On November 18, 2003, City Council adopted by consent the recommendations of the General Manager of Engineering services to enter into such an agreement with the Port. One of the elements of that agreement was that the Port would be responsible for ensuring that all necessary measures are taken, including covering insurance costs, to allow for the cessation of whistling at that crossing.
That development, while promising, was not yet cause for celebration. I had learned through years of struggling with this issue that change does not come easy when dealing with government and big business. Again I waited, and waited and waited. Two more years! Finally, after nearly ten years fighting to stop unnecessary train whistles sounding all through the night, I received word in December, 2005 that everything was now in place to allow for the cessation of train whistles at that one location. And all it took was a terrorist attack in New York city. Who could have known?
Sweet sound of silence! But please don’t tell those hopeless romantics who love the sound of train whistles that I’m the cause of that silence. I’ve had enough fighting for awhile.
Addendum December 2008
Looking back it is amazing to me that I managed to get good grades in law school. let alone graduate, while enduring all the noise described above. I now have no doubt at all that the extreme noise I endured for ten years greatly exacerbated my undiagnosed, thus untreated, PTSD. Two articles below, Quiet, Please! How Noise Pollution Could Send You To The Hospital and Why We Need Sleep Even More Than We Think, support that contention.
Addendum November 2008
The Supreme Court of Canada decision reported on in the article below is fantastic news for people suffering from noise and other pollution created by industries neighbouring residential areas. We could have used these legal conclusions in the fight against Canadian Pacific Railway noise I write about above, but alas, they come too late to save us from years of corporate abuse by CPR.
Globe and Mail - Print Edition 21/11/08 Page A4
SUPREME COURT OF CANADA: THE ENVIRONMENT
Polluters liable for 'annoyances,'even if they have broken no laws
November 21, 2008
Polluters can be successfully sued for emitting annoying odours, dust or noise - even if they are in compliance with government regulations, the Supreme Court of Canada ruled yesterday.
In a landmark ruling favouring the environmental movement, the court allowed a class action launched by 2,000 citizens near Quebec City who suffered for half a century from an irritating blanket of dust and odour emanating from a St. Lawrence Cement Inc. plant that was located in their midst.
The court said polluters must pay "based on the annoyances suffered by the victim being excessive, rather than on the conduct of the person who allegedly caused them."
The 6-0 ruling applies specifically to Quebec - which has a distinct Civil Code. However, the broad principles enshrined by the court are expected to quickly spread across the country in future rulings.
"This is a massive victory for the environmental community and for citizens in Canada, particularly Quebec," said Will Amos, a lawyer for the environmental group Ecojustice.
"It is going to make it much easier for citizens to make environmental-nuisance complaints," Mr. Amos said in an interview. "They are not going to have to prove fault or wrongdoing. They have only to prove that an abnormal annoyance occurred. That is absolutely critical."
The court delineated two separate streams of potential liability in environmental lawsuits. The first relates to cases in which actual wrongdoing can be proved. The second relates to emissions which, despite being legal, exceed reasonable levels of tolerance in a community.
"Even though it appears to be absolute, the right of ownership has limits," Mr. Justice Louis LeBel and Madam Justice Marie Deschamps wrote for the court.
They said that plaintiffs "do not require evidence of wrongful conduct to establish the liability of an owner who has caused excessive neighbourhood annoyances."
Yesterday's decision realized the worst fears of St. Lawrence Cement and other companies caught up in disputes with their neighbours.
Judge LeBel and Judge Deschamps said that the plaintiffs symbolically represent a multitude of others across the country in an era when citizens no longer accept noxious pollutants as an acceptable irritant.
"Dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust," they said. "Sometimes, weary of brooms and buckets of water, they are not unwilling to turn to the courts to get rid of it. This case is proof of that."
The court noted that its ruling stems from accepted principles of both Quebec civil law and Canadian common law. "What is more, such a scheme is consistent with general policy considerations, such as the objective of environmental protection and the application of the polluter-pay principle," it said.
St. Lawrence Cement opened its Beauport plant in 1952. By 1955, the company and the community were at war over noise, odour and airborne pollutants, which the inhabitants alleged were damaging their property and enjoyment of life.
While the class action was launched in 1994 and the plant ceased operating in 1997, the litigation lived on.
In another victory for environmentalists, the court ruled that damage awards can vary within a community, since citizens may suffer differing degrees of harm.
The other concurring judges were Chief Justice Beverley McLachlin, Mr. Justice Morris Fish, Madam Justice Rosalie Abella and Madam Justice Louise Charron.
HOW NOISE POLLUTION COULD SEND YOU TO THE HOSPITAL
By Ursula Sautter and Mary Desmond Pinkowish , Ode
Posted on July 15, 2008 http://www.alternet.org/story/91463/
A leaf blower, snow blower, lawn mower and two huge dogs -- Peter D'Epiro can describe in excruciating detail how his neighbor's lawn equipment and pets ruined summer afternoons and dinner parties for him and his wife for more than a decade in Ridgewood, New Jersey. But he'd rather not. "I can barely think about that situation without rushing for the Valium or the IV gin drip," he says.
With rising emotion, D'Epiro recalls how the neighbor began "warming up his rider mower, converting our idyllic backyard -- birds, squirrels, crabgrass -- into the sonic equivalent of La Guardia or Heathrow. Yes, he had a large yard, but the job could have been accomplished in 30 minutes, whereas he took, oh, say, six or seven hours on Saturday, often followed by another half-dozen on Sunday." D'Epiro goes on to describe how he and his wife, usually mild-mannered, exceedingly polite people, were reduced to screaming, fist-shaking and cursing in the face of these acoustic offenses.
Noise brings out the worst in human beings -- noisy people have been injured and even killed by their neighbors -- but neighbors are just one source of noise in a world that's increasingly cacophonous. Neighborhoods can turn into battlegrounds when clubs, restaurants, automobile sound systems and parties are acoustically unrestrained. The roadway clamor made by cars and trucks, the oppressive roar of low-flying aircraft, the rumble of commuter trains and the screeching of subway cars compound the challenges of daily life in the city or suburbs. Construction work generates lots of noise, and lots of noise complaints to civil authorities. Indoor sources include ventilation systems, office machines, home appliances, TVs and computer games.
Noise isn't just a nuisance; it's positively bad for us. We've known for decades that super-loud noise can deafen us. But damaged hearing is just the beginning. A jet flying overhead or a snoring bedmate can increase blood pressure and heart rate even when we don't stir from our slumber. Stress hormones surge into the bloodstream. Doctors worry that this chain of events creates health problems when it happens all night long, every night of the week. The ability of children to learn is compromised by noise. Noise may worsen some mental illnesses, and even people without previous mental health issues can become downright crazy when exposed to loud noise.
"We have lost our rights to enjoy our own property without the intrusion of noise," says Ted Rueter, founder and director of Noise Free America, a grassroots outfit dedicated to fighting noise pollution. "Noise is a form of trespassing."
For Les Bloomberg, executive director of the Noise Pollution Clearinghouse (NPC), the whole idea of what constitutes noise needs to change. "The old definition of noise was 'unwanted sound,'" he says. "But we define noise as any sound that impacts or harms the health of people. This definition is more consistent with definitions of other forms of pollution, including air pollution."
Global warming notwithstanding, environmental pollution is easing. In most developed countries, the air and water are cleaner than they were 30 years ago. Noise pollution, in contrast, is getting worse. Now people are getting mad as hell -- and they aren't going to take it anymore.
Complaints about noise pollution are mounting, according to the World Health Organization (WHO). In Europe, 40 percent of the population is exposed to daytime road noise exceeding 55 decibels (dBA), and 20 percent of people spend their days listening to noise that exceeds 65 dBA. According to the American Speech-Language Association, 60 dBA is about the noise level generated by a typical dishwasher. So imagine sitting next to a running dishwasher all day.
WHO data also show that 30 percent of Europeans are forced to sleep in environments with noise that exceeds 55 dBA every night, a level known to disrupt sleep. The European Federation for Transport and Environment estimates that 44 percent of Europeans, more than 200 million people, are exposed to health-threatening noise levels.
The U.S. Environmental Protection Agency (EPA) says that to prevent hearing loss, people should be exposed to no more than 70 decibels of environmental noise in a 24-hour period. But the EPA acknowledges that noise exceeding 55 decibels outdoors and 45 decibels indoors interferes with work and conversation and annoys people. And that annoyance is becoming more pronounced. Of those who participated in the U.S. Census in 2000, nearly one-third complained of noise. More than 10 percent rated the noise as bothersome, and of these, 40 percent said they wanted to move because of noise.
The WHO reports that transportation -- road, rail and air traffic -- is the major source of noise pollution. Things haven't changed much in the past few thousand years. The ancient Romans suffered so much from the noise made by iron-wheeled wagons driven over stone pavements that they enacted laws to regulate the use of these vehicles. This is a continuing legacy in the city of Rome. Virtually every review of Rome's hotels makes note of the amount of traffic and road noise guests can expect.
"It is important to differentiate between effects like hearing loss and stress effects like high blood pressure, because two different sound sources are concerned," says Wolfgang Babisch, senior research officer at the German Federal Environmental Agency in Berlin. "On the one hand, there is industrial noise and leisure-activity noise -- things such as rock concerts, discos and iPod use -- that can cause various degrees of hearing loss and/or tinnitus [a persistent ringing in the ears]. Studies have shown, for instance, that noise levels of more than 100 decibels are absolutely normal on today's dance floors, and young people often complain of hearing problems as a result. On the other hand, there is the so-called environmental noise caused by road or aircraft traffic. Since the sound level is lower in these instances, there are usually no adverse effects on hearing. But they can affect the whole organism by triggering stress responses."
Cars and trucks produce noise in two ways. The engines make noise, and the contact between the vehicle and the road creates noise. At speeds greater than 40 mph (60 km/h), road noise is louder than engine noise.
Trains and other forms of rail transportation make lots of noise too. That unendurable wheel squeal happens when the train goes around tight curves, which are more common in crowded cities. Train stations are noisy because of running engines, engine whistles and loudspeaker systems. High-speed trains, those that travel faster than 155 mph (250 km/h), can mimic the acoustic effect of a low-flying jet directly overhead.
Speaking of jets, it's not just the noise that's disturbing; it's, but the vibration and rattle they cause at low altitudes. Ask people who live near New York City's La Guardia Airport. According to a study published earlier this year in the Journal of Occupational and Environmental Hygiene, people living three-quarters of a mile from this airport are exposed to four times as much noise as people living five miles away. Among people whose homes were in the flight path, 55 percent said they were bothered by the noise.
But airports don't just have planes; they also draw road traffic, and even more people, 63 percent, said they were bothered by road noise leading into and out of the airport. The noise measured in this study translated "to a sound that is perceived to be roughly twice as loud as a more or less constant background noise level in the home," says Beverly Cohen, a professor at the Nelson Institute of Environmental Medicine at the New York University School of Medicine, and one of the investigators involved in this study.
The sounds of construction, especially in cramped urban areas, are another major contributor to noise pollution -- pneumatic hammers, air compressors, bulldozers, loaders, dump trucks and pavement-breakers. Hospitals can be as noisy as construction sites, and a recent study conducted at the Queen's Medical Center in Nottingham in the UK makes it difficult to believe that people are expected to recover from illness there. The WHO guidelines for hospitals stipulate that neither daytime nor nighttime noise levels should exceed 30 and 40 dBA respectively. Noise in the Nottingham hospital was measured and analyzed over a 24-hour period on five general surgical wards. On all of them, peak noise levels exceeded 80 dBA during the day. On one ward, the peak level was an astounding 95.6 dBA. That's like having a cement truck drive past your bed -- repeatedly.
Similar results come from a study performed in Madurai, India, in which the obstetrics and gynecology unit was the noisiest (72 dBA) and the quietest was the morgue (57 dBA). At least the patients in the morgue are less likely to complain.
It's a staple of cartoons and sitcoms: A red-faced guy is sitting in a chair trying to read the paper, but the veins in his temple are bulging and steam is coming out of his ears because of a) noisy neighbors, b) a barking dog, c) a jackhammer, or d) planes flying overhead. The steam out the ears is an exaggeration; the bulging veins aren't. Chronic exposure to loud noise is bad for the cardiovascular system.
Researchers with the Hypertension and Exposure to Noise near Airports (HYENA) project in cities across Europe conducted blood pressure measurements at 15-minute intervals, or about 30 measurements each night, in 140 people sleeping near major airports. Noise levels were measured at the same time. Even when the overhead airplane noise didn't wake the study participants, systolic blood pressure (the top number on a blood pressure reading) increased by 6.2 mm Hg and diastolic blood pressure (the bottom number) by 7.4 mm Hg. Heart rate went up by an average of 5.4 beats per minute. For someone whose blood pressure is generally in the low or normal range (120/80 mm Hg or lower), this might not be hazardous. But for people whose blood pressure is already too high, these constant spikes may increase the risk of stroke, heart attack or heart or kidney failure.
Blood pressure and heart rate reactions "were similar regardless of the noise source -- aircraft, truck, or partner snoring," says Lars Jarup, a researcher with the Imperial College of London, England, and one of the principal investigators. That's right -- a partner snoring is right up there with aircraft noise as a cause of nighttime blood pressure spikes.
"We believe that it is likely that frequent repeats of nightly acute blood pressure elevations will affect blood pressure chronically, but that needs to be studied further," says Jarup, who adds there's no evidence that people become habituated to a noisy sleeping environment.
"Long-term exposure to environmental noise, especially at night, causes chronic disturbance of the natural sleep pattern -- even if you don't wake up completely," says Babisch of the German Federal Environmental Agency. "Studies in sleep labs have proved that persons exposed to this type of noise show increased levels of the stress hormones adrenalin and noradrenalin. These hormones regulate metabolic functions that affect risk factors such as the blood fat level and blood sugar level."
Babisch adds that these reactions occur even in people who consider themselves inured to noise and don't report disturbed sleep. "There is no 100 percent noise habituation. The ears don't switch off when we sleep. The brain still registers the information about what's going on around us."
Neurosis, hysteria, anxiety, stress, nausea, aggression, argumentativeness and social conflict -- these are just a few of the emotional problems linked to uncontrolled noise. And while noise may not cause mental illness, it's believed to worsen disorders like depression and anxiety. According to a 2004 study published in the British Medical Journal, people living near the Schiphol Airport in Amsterdam, the Netherlands, were more likely to need sleep medication, take pills for heart disease and report poor general health.
Noise may not make kids dumb, but it does make it hard for them to learn. The Road Traffic and Aircraft Noise Exposure and Children's Cognition and Health (RANCH) project is a multinational study designed to assess the relationships among road and aircraft traffic noise and reading comprehension. Included in its 2006 findings are data from more than 2,000 kids ages 9 and 10, enrolled in 89 schools near airports in three European cities. The verdict: A direct relationship exists between aircraft noise exposure at schools and problems with reading comprehension, even after the investigators account for socio-demographic factors known to interact with reading comprehension.
"Most of the long-term effects of chronic noise are detrimental to attention, learning and concentration," says Lorraine Maxwell, associate professor of design and environmental analysis at Cornell University in Ithaca, New York. "These are psychological and learning effects," according to Maxwell, not hearing problems.
She and her colleagues have also studied the effects on learning of road and air traffic, and the difficulties caused by noise in daycare centers and schools. "We know that very young kids in daycare learn to screen noise so they can stay on task," she says. "But they can get too good at this. By the time some of them are in elementary school, they've learned how not to pay attention to the classroom instruction."
Maxwell adds that noise is highly detrimental to kids when they're trying to focus on a task that happens to be difficult for them, like a math skill, for example. Noise is also a disaster for children with learning disabilities or for whom the classroom language isn't their native tongue.
"It takes too much energy to pay attention in a noisy environment," explains Maxwell. "As adults, we can usually call ourselves back to attention when it's important, but children who learn this pattern at a very young age don't do that."
The March 5, 2007, edition of The New York Times ran a story about a meeting of The Society for the Suppression of Unnecessary Noise, an organization dedicated to "an aggressive campaign against the useless and nerve-racking noises of the street." The Society reported progress in getting automobile owners to avoid driving past churches, hospitals and schools. If drivers couldn't avoid these institutions, they were asked to do two things: reduce their speed and refrain from using the horn. At about the same time in Boston, Massachusetts, hurdy-gurdy players were required to tune their instruments at least once a year.
The gentlepeople of The Society for the Suppression of Unnecessary Noise would be disheartened by the situation today. But to the NPC's Les Bloomberg, things are looking up. "One reason for my optimism about noise pollution is that it's hard to imagine it getting worse," he says. "For 50 years, people with means have moved to suburbs to escape noise. But that option doesn't work anymore. Now we take the noise with us to the suburbs, and suburban noise levels have increased."
Bloomberg cites the usual suspects, some of the stuff that made Peter D'Epiro's life miserable: leaf blowers, lawn mowers, nearby highways, air-conditioning units and booming car stereo systems.
The German Federal Environmental Agency's Babisch thinks new technologies can help turn down the volume. "Technological advances have caused some noise sources to quiet down," he says. "Cars and aircraft are less noisy than they once were, and countless noise barriers have been erected. But this is compensated for by the increased volume of traffic, so overall noise exposure hasn't changed much."
Babisch believes additional technological advances will be necessary to keep us from getting stuck in the present moment, noise-wise. Acoustical engineers are finding ways to reduce noise in hospitals, prisons and schools. Solutions range from the simple -- carpeting -- to the novel -- antibacterial fiberglass, which absorbs the noise created by ventilation systems, hospital equipment and human speech. Road surfaces are constantly refined to reduce the amount of noise that bounces off nearby homes.
Worried that a snoring spouse may shorten your lifespan? Consider popping in some earplugs at night. There's no evidence yet that you'll live longer, but at least you'll sleep better.
Technological fixes aren't the only way to control noise. Legislation helps. A pub-noise crackdown is underway in the UK, while lawmakers in Brevard County, Florida, in the U.S. have enacted a law to force drivers to keep car stereos turned down. More than 600 citations were issued in accordance with similar legislation in the city of Melbourne, Australia, in 2007.
The European Federation for Transport and Environment suggests a number of measures municipalities should adopt to get a better grip on noise, including reducing city traffic by offering park-and-ride lots and pedestrian-only areas, replacing old stone pavements and brushed concrete with sound-absorbing surfaces and using small roundabouts and interactive speed-restriction signs to slow traffic instead of speed bumps and traffic obstacles, which can increase traffic noise.
Noise Free America wants each state in the U.S. to declare noise "a dangerous form of pollution" and adopt a noise code. The proposed code would ban gasoline-powered leaf blowers, car alarms and loud exhaust pipes. The code would outline fines for the owners of barking dogs, set time frames for construction work and garbage collection and establish a rule stating that electronically amplified sound coming from a car can't be audible more than 10 feet from the vehicle. Other provisions include limits on the use of power equipment, Jet Skis, dirt bikes, snowmobiles, sirens and train horns.
More colorful is the approach of activists in Thailand protesting the noise around Suvarnabhumi Airport near Bangkok. On several occasions in the past 18 months, they threatened to release bunches of balloons to disrupt air traffic in protest against the noise between 9 p.m. and 7 a.m. Last February, they made good on their promise, costing the airport more than $500,000 in compensation to airlines for the ensuing delays. That's above and beyond the earplugs and sleeping pills airport officials have been providing area residents since Suvarnabhumi opened. When faced with the possibility that neighbors would launch homemade rockets along with the balloons, however, civil authorities began negotiations for financial compensation of people living near the airport.
Bloomberg's solution is even more radical than balloons, bans and rockets. "The individualistic solution to the noise problem -- moving to the suburbs -- is no longer working. Now we need a more collective or community-oriented solution, because one person's noise trumps everyone else's quiet. We need to create community and interdependence."
Citing local governments (noisy trash pick-up) and businesses (noisy trucks), Bloomberg says it's easy to pollute when you're anonymous. "In many places, our sense of community has broken down. We don't care about our neighbors. We don't know our neighbors." As a result, we don't necessarily care if we keep them awake at night or disrupt their quiet summer afternoons.
His solution? Throw a party or start a carpool. Bloomberg says you're less likely to offend a neighbor if you drive each other's children to school each day. Bloomberg tells the story of a former neighbor who was a musician and liked to give boisterous parties. "I'm sure he broke our local Montpelier, Vermont, noise ordinances on many occasions. But he invited me to the parties! Problem solved." If the party continued after he went home and stayed loud, it only took a phone call to get the music turned down. "We were friends. He borrowed my ladder; I had some of his tools. We were interdependent."
While passionate about fighting noise pollution, Bloomberg also observes that silence really isn't found in human communities. "You need to go to a cave or a federal wilderness area for silence," he says. "A totally silent human community would be a poor human community."
He tells of a day a few years ago when a family of former neighbors returned for a visit. "We had little kids running around the yards of three families who had come out to see them, yelling and laughing. But we weren't imposing on anyone because we were all out there visiting. We made a small footprint of noise," he says, a footprint of happy human voices.
Which is further evidence, if we needed it, that peace and quiet begin at home.
Mary Desmond Pinkowish is a health writer living the quiet life in Larchmont, New York.
Ursula Sautter is a freelance journalist living in Bonn, Germany.
View this story online at: http://www.alternet.org/story/91463/
Why We Need Sleep Even More Than We Think
By Michael Haederle
Sleep. It's something everyone likes to do and can't seem to do without.
Yet many Americans do with a lot less than they'd like. Suffering from chronic insomnia, they know all too well the deadening fatigue that follows interrupted sleep. But while the mental misery of sleeplessness is well documented, some eye-opening new reports warn serious health woes may await those who don't get enough shut-eye.
Sleep researchers at UCLA have found, for example, that losing even a single night's sleep causes the body's immune system to turn on healthy tissues. That may implicate sleep deficits in cardiovascular disease, some cancers, obesity, arthritis, diabetes and various autoimmune disorders.
Heavy snoring was found to be an independent risk factor for carotid atherosclerosis, raising the risk for stroke, according to research done at the University of Sydney in Australia, and a study by Dutch scientists showed that insomnia compromised cognitive processes related to verbal fluency, actually damping down the activity of the brain's prefrontal cortex.
Researchers used to regard lost sleep as more of an inconvenience than a health risk, says Dr. Chiara Cirelli, a sleep researcher in the department of psychiatry at the University of Wisconsin, Madison. "Now we know that sleep restriction for even a week has very profound cognitive effects."
It's enough to keep one up at night. More than a third of adults report having had some insomnia symptoms within a given year, according to the American Insomnia Association, and 10 to 15 percent of adults suffer from chronic insomnia.
The good news is that nonpharmacological strategies can be effective in battling insomnia. These include cognitive-behavioral therapy, which cuts through the spiraling anxiety that perpetuates sleeplessness, and maintaining good bedtime routines.
Scientists still don't know exactly why animals sleep, said Cirelli, whose recent study "Is Sleep Essential?"was published online by PLoS Biology. She and colleague Giulio Tononi considered the "null hypothesis" — that sleep is not essential. If that assumption, posed earlier this year by UCLA scientistJerome Siegel, is correct, one would expect to find animals that don't sleep and animals that don't need recovery sleep when sleep-deprived. There also should be no serious consequences to going without sleep.
In "Do All Animals Sleep?"published in Trends in Neuroscience, Siegel cited some creatures that seem to do without sleep, including dolphins, which constantly surface to breathe. But dolphins exhibit "unihemispheric sleep," in which one side of the brain remains active while the other rests.
"The existence of unihemispheric sleep is some of the best evidence that sleep is important," Cirelli argued.
Cirelli and Tononi also discounted reports that some animals don't seem to need recovery sleep, concluding, "Sleep is present and strictly regulated in all animal species that have been carefully studied so far." Meanwhile, studies have shown that rats and flies die when deprived of sleep. Other creatures — including people — experience brief episodes of microsleep during waking hours as the brain tries to re-regulate itself.
Sleep-deprived people often don't know just how badly they're affected even though they are frequently drifting into microsleep, Cirelli said. "They get worse and worse, although subjectively they think they get better," she said. "One second you are perfectly fine, and the next second you are bad. You keep oscillating up and down, up and down."
But if sleep is indeed essential, what purpose does it serve? Cirelli and Tononi speculate that it has to do with how learning affects the brain's synapses — the junctures where neurons meet and exchange neurotransmitters.
"The function of sleep is a very basic cellular function, which is to maintain synaptic homeostasis," Cirelli said. As we go through our day, absorbing new information, the synapses become stronger, requiring ever-greater energy consumption. But during sleep, neurotransmitter levels drop as the neurons grow quiet and return to their original state.
Until recently, sleep research focused on behavior and the fluctuations of brain waves as measured by electroencephalograms (EEG). But now, thanks to functional magnetic resonance imaging (fMRI), scientists can get a real-time look at how the brain is affected by sleep deprivation.
In Amsterdam, Ellemarije Altena, a doctoral student at the Netherlands Institute for Neuroscience, recruited 21 older Dutch people suffering from chronic insomnia, matching them with 12 controls. The patients, who ranged from age 50 to age 75, had been suffering from insomnia for at least two and a half years.
According to a study titled "Prefrontal Hypoactivation and Recovery in Insomnia,"published recently in the journal Sleep, Altena and her collaborators had subjects perform verbal fluency tests while undergoing fMRI scans. And while the insomniacs did just as well on the tests (in which they might, for example, be asked to think of as many words as possible beginning with a certain letter), the scans showed they had less activity in the left medial prefrontal cortex and the left inferior frontal gyrus, two fluency-specific brain regions.
Altena said those regions are involved in verbal "inventiveness," which often declines in patients with Parkinson's or Alzheimer's. The insomnia sufferers' ability to handle the test may mean that the test wasn't that difficult. Altena also speculates that there might be "some compensatory activation" of another part of the brain, although that might differ from one patient to another.
The study was significant because most previous research on sleep deprivation has occurred in laboratory conditions, Altena said. Thanks to fMRI and other new technology, "There's now more focus on natural insomnia."
The good news was that the deficits were at least partially reversible with sleep therapy. Patients, who kept a sleep diary, initially had their time in bed limited. As their sleep efficiency increased, they could stay in bed for longer periods. "The motivation for them to be treated for their insomnia was very, very high," Altena explained.
Patients were provided with bright lights during the morning and evening to help reset their inner clock. They were also advised to take warm baths a couple of hours before retiring to dissipate heat and normalize their core temperature.
Sleep therapy improved the insomnia sufferers' sleep efficiency by 14.5 percent. Moreover, their brain scans showed the affected prefrontal regions were partly restored. "It's very important to investigate these tasks in other age groups and see if these results hold for the other age groups," Altena said.
Michael Haederle lives in New Mexico. He has written for the Los Angeles Times, People Magazine, Tricycle: The Buddhist Review and many other publications.
The Independent - Uk October 12, 2009
One European in five faces excess noise in their sleep
One European in five is exposed to excessive noise overnight that may damage their health, the World Health Organisation said Thursday as it released new guidelines for night-time noise in Europe.
"Just like air pollution and toxic chemicals, noise is an environmental hazard to health," said Rokho Kim, who led the project for the WHO's regional office for Europe.
"While almost everyone is exposed to too much noise, it has traditionally been dismissed as an inevitable fact of urban life and has not been targeted and controlled as much as other risks," he added in a statement.
The recommended average level of 40 decibels corresponds to a quiet street in a residential area overnight, the WHO said.
Those who toss and turn with slightly higher levels get away with "mild health effects" such as a bout of insomnia, it added.
But above 55 decibels -- the noise of a busy street -- people run the risk of more severe effects such as blood pressure problems and heart attacks, as the body and brain react to sound while they are asleep.
"One in five Europeans is regularly exposed to such noise levels," according to the UN health agency.
The peer-reviewed 162-page set of guidelines was produced with 35 scientists and health experts after a six-year assessment of scientific evidence.
"Noise has emerged as the leading environmental nuisance in Europe, and excessive noise is an increasingly common public complaint," said Srdan Matic, head of non-communicable diseases and environment at WHO Europe.