ARCHIVED — Vol. 150, No. 50 — December 10, 2016

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NATIONAL ENERGY BOARD

NATIONAL ENERGY BOARD ACT

To Trans Mountain Pipeline ULC for the Trans Mountain Expansion Project: (i) Order — Certificate of Public Convenience and Necessity OC-001-064; (ii) Amending Order in Council AO-002-OC-49; and (iii) Amending Order in Council AO-003-OC-2

P.C. 2016-1069 November 29, 2016

Whereas, on December 16, 2013, Trans Mountain Pipeline ULC (“Trans Mountain”) applied to the National Energy Board (“the Board”) pursuant to Part III of the National Energy Board Act for a certificate of public convenience and necessity in respect of the proposed construction and operation of the Trans Mountain Expansion Project (“the Project”);

Whereas, on May 19, 2016, having reviewed Trans Mountain’s application and conducted an environmental assessment of the Project, the Board submitted its report on the Project entitled Trans Mountain Expansion Project OH-001-2014 (“the Board’s Report”) to the Minister of Natural Resources, pursuant to section 29 of the Canadian Environmental Assessment Act, 2012 and section 52 of the National Energy Board Act;

Whereas, by Order in Council P.C. 2016-435 of June 3, 2016, the Governor in Council, pursuant to subsection 54(3) of the National Energy Board Act, extended the time limit referred to in that subsection by four months to allow for additional Crown consultation with potentially affected Aboriginal groups, public engagement, and an assessment of the upstream greenhouse gas emissions associated with the Project;

Whereas the Governor in Council, having considered Aboriginal concerns and interests identified in the Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Expansion Project dated November 21, 2016, is satisfied that the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated;

Whereas the Governor in Council accepts the Board’s recommendation that the Project will be, if the terms and conditions set out in Appendix 3 of the Board’s Report are complied with, required by the present and future public convenience and necessity under the National Energy Board Act and will not likely cause significant adverse environmental effects under the Candian Environmental Assessment Act, 2012;

Whereas the Governor in Council, having considered the estimated upstream greenhouse gas emissions associated with the Project and identified in Environment Canada’s report entitled Trans Mountain Pipeline ULC — Trans Mountain Expansion Project: Review of Related Upstream Greenhouse Gas Emissions Estimates, and the Government of Alberta’s Climate Leadership Plan commitment to cap oil sands emissions at 100 megatonnes of carbon dioxide equivalent per year, is satisfied that the Project is consistent with Canada’s commitments in relation to the Paris Agreement on Climate Change;

Whereas the Governor in Council has considered the Ministerial Panel’s report on the Project entitled Report from the Ministerial Panel for the Trans Mountain Expansion Project, dated November 1, 2016;

And whereas the Governor in Council considers that the Project would increase access to markets for Canadian oil and support environmentally sustainable resource development;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources,

  • (a) pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, decides that, taking into account the terms and conditions referred to in paragraph (b), the Trans Mountain Expansion Project is not likely to cause significant adverse environmental effects, and directs the National Energy Board to issue a decision statement concerning that Project;
  • (b) pursuant to subsection 54(1) of the National Energy Board Act, directs the National Energy Board to issue Certificate of Public Convenience and Necessity OC-64 to Trans Mountain Pipeline ULC, in respect of the proposed construction and operation of the Trans Mountain Expansion Project, subject to the terms and conditions set out in Appendix 3 of the National Energy Board Report of May 19, 2016 entitled Trans Mountain Expansion Project OH-001-2014; and
  • (c) pursuant to subsection 21(2) of the National Energy Board Act, approves the issuance by the National Energy Board to Trans Mountain Pipeline ULC of Amending Order AO-002-OC-49 and Amending Order AO-003-OC-2, substantially in the annexed form.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal and objectives

On December 16, 2013, Trans Mountain Pipeline ULC (Trans Mountain), a wholly owned subsidiary of Kinder Morgan Canada, applied to the National Energy Board (NEB or the Board) under sections 52 and 58 of the National Energy Board Act (NEB Act), requesting that Certificate of Public Convenience and Necessity (Certificate) OC-001-064 be issued by the NEB for the construction and operation of the Trans Mountain Expansion Project (the Project).

The Project consists of twinning its existing 1 147 kilometre (km) Trans Mountain Pipeline system between Edmonton, Alberta (AB), and Burnaby, British Columbia (B.C.), and expanding its Westridge Marine Terminal (WMT) in Burrard Inlet. The Project would include approximately 987 km of new, buried pipeline and would increase the capacity of the pipeline system from 47 690 cubic metres per day (m3/d) or 300 000 barrels per day (bbl/d) to 141 500 m3/d (890 000 bbl/d).

On May 19, 2016, following its hearing and review of the Project, the Board issued its Report and recommendations to the Government of Canada. It recommended that the Project would be in the public interest and that the Governor in Council issue the Certificate for the construction and operation of the Project, subject to 157 terms and conditions that the Board considers necessary or desirable to ensure the safe construction and operation of the pipeline, mitigate environmental impacts and address potential impacts on Indigenous rights and interests identified during its review of the Project.

The Board is also seeking approval to issue two amending orders in council pursuant to subsection 21(2) of the NEB Act, including

  1. Amending Order AO-002-OC-49 for the removal from Certificate OC-49 (transfer from Line 1 and put into service on Line 2). This is a 150 km nominal pipe size (NPS) 36 inch pipeline segment from Hinton to Hargreaves;
  2. Amending Order AO-003-OC-2 for
    • • Authorization to decommission
      • • one existing tank at the Edmonton Terminal West Tank Area;
      • • one existing tank at the Burnaby Terminal
    • • Authorization to reactivate
      • • 150 km NPS 24 pipeline segment from Hinton to Hargreaves;
      • • 43 km NPS 24 pipeline segment from Darfield to Black Pines; and
      • • Niton Pump Station
    • • Removal from Certificate OC-2 (transfer from Line 1 and put into service on Line 2):
      • • 43 km NPS 30 pipeline segment from Darfield to Black Pines

Background

Trans Mountain submitted its application to the NEB for a certificate for the Project on December 16, 2013. The purpose of the Project is to increase capacity of the pipeline system from 300 000 bbl/d to 890 000 bbl/d, by twinning the existing Trans Mountain pipeline that currently transports oil from Edmonton to Burnaby.

The pipeline would follow an existing right-of-way for 89 per cent of its 1 147 km length. The Project would also expand the WMT by adding two berths to allow the terminal to increase, from five to 34, the number of tankers it receives per month. This would increase Project-related tanker traffic through the Burrard Inlet by up to 13.4 per cent and in the Juan de Fuca Strait by 6.6 per cent over current levels.

For the purposes of the Canadian Environmental Assessment Act, 2012 (CEAA, 2012), the construction and operation of a new pipeline with a length of 40 km or more are designated activities linked to the Board, as prescribed under item 46 of the Schedule to the Regulations Designating Physical Activities (SOR/2012-147). The Project is therefore a “designated project” in relation to which the Board must conduct an environmental assessment (EA) in accordance with the requirements of the CEAA, 2012. The NEB must ensure that Canadians have the opportunity to participate in the EA, and issue an EA report, which is, in this instance, included in the NEB recommendation report.

On January 27, 2016, the Government of Canada introduced an interim strategy for decision making on major projects undergoing review. Under the interim approach, five principles were used to guide the Government’s decisions on energy projects: (i) no project proponent will be asked to return to the starting line; (ii) decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence; (iii) the views of the public and affected communities will be sought and considered; (iv) Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated; and (v) direct and upstream greenhouse gas emissions linked to the projects under review will be assessed. For the Trans Mountain Expansion Project, the principles were implemented in measures such as

  • Undertaking deeper consultations with Indigenous peoples and providing funding to support participation in these consultations;
  • Assessing the upstream greenhouse gas (GHG) emissions associated with this Project and making this information public; and
  • Appointing a panel to engage communities, including Indigenous communities potentially affected by the Project, to seek their views and report back to the Minister of Natural Resources.

To support these commitments, the Governor in Council extended, by Order in Council P.C. 2016-435 dated June 3, 2016, the regulatory time limit for a decision on the Project by four months. As a result, the Governor in Council has until December 19, 2016 (instead of August 19, 2016) to make a decision. This additional time provided for deeper Crown consultation with Indigenous groups and engagement with the public in addition to assessing the GHG emissions associated with the Project. Budget 2016 increased participant funding to Indigenous groups from $700,000 to $2.2 million.

National Energy Board review process

Board consultation process

In April 2014, the NEB issued Hearing Order OH-001-2014, setting out the process for the public review of the Project.

The Board received and considered a total of 2 118 applications to participate in the OH-001-2014 hearing for the Project. The Board granted standing to participate to 1 650 applicants. Out of these 1 650 hearing participants, 400 participated as intervenors and the remaining as commenters. Hearing participants were from various groups, including federal and provincial governments, business, Indigenous people, landowners, individuals and non-government organizations.

In July 2013, the Board announced it would make $1.5 million available to eligible intervenors to participate in the hearing. However, the funding envelope was subsequently increased to a total of $3,085,370 allocated to 72 intervenors.

The Board relied on its Enhanced Indigenous Engagement initiative to ensure potentially impacted Indigenous groups have the opportunity to be heard. Through this initiative, 73 Indigenous groups (see footnote 1) participated as intervenors into the hearing process, and 35 groups and individuals provided oral traditional evidence to the Board at sessions held in Edmonton, AB, in September 2014, Chilliwack, B.C., in October 2014, Kamloops and Victoria, B.C., in November 2014, and Calgary, AB, in January 2015.

Issues raised during NEB hearings
Commercial parties

The Project has strong support from 13 shippers (including Canadian Oil Sands, Cenovus, Devon, Husky Oil, Imperial Oil, Statoil, Suncor, Tesoro and Total) with firm commitments of approximately 112 300 m³/d (707 500 bbl/d) in long-term contracts of 15 or 20 years. The Canadian Association of Petroleum Producers, a major industry association, and the Explorers and Producers Association of Canada also support the Project. Both the Edmonton Chamber of Commerce and the British Columbia Chamber of Commerce said that the crude oil transmission infrastructure is used at full capacity and additional capacity is critically needed.

Individuals and non-government organizations

Of the approximately 400 intervenors and 1 250 commenters in the hearing process, many were individuals and non-government organizations who expressed strong opposition to the Project, citing the risk of a spill, downstream and upstream climate change impact and environmental effects. Some participants questioned the need for the Project, and submitted that investing in renewable energy would be a preferable option for Canada.

Indigenous groups

Seventy-three Indigenous groups (representing 83 Indigenous communities) participated as intervenors in the hearing and provided their comments, views and evidence through written submissions and oral evidence to the NEB. A total of 35 Indigenous groups and individuals provided oral traditional evidence to the Board during the hearing.

Indigenous groups’ overarching issues identified relate to the potential significant adverse impacts the Project could have on their asserted or established Aboriginal and treaty rights. These consist of the rights to hunt, to trap, to fish, to harvest, and to carry out traditional activities, including cultural and spiritual activities. In addition to these overarching concerns related to their asserted and established Aboriginal rights and title, other key Indigenous concerns pertain to the Project’s potential effects on

  • cultural heritage resources;
  • community health;
  • cumulative effects of development; and
  • employment.

Indigenous groups also raised concerns about the potential adverse effects of the Project on the environment, which relates to fish and fish habitat, wildlife, vegetation, soils, water quality and quantity, and traditional land and marine resource use. With respect to impacts on traditional land and marine resource uses, practices and activities, some groups fear it could negatively impact their ability to continue their ancestral and traditional way of living through hunting, fishing, trapping and gathering of plants for subsistence or medicinal purposes. Many Indigenous groups expressed concerns over the Project’s potential impacts related to spills and other health-related issues, including stress and reduced prenatal health and youth development.

In addition, several Indigenous groups are concerned by the cumulative impacts associated with accelerated resource development on their traditional lands. They noted that as industrial and commercial development unfolds at an accelerated pace through highways, roads, farming and resource development in general, their ability to exercise their Aboriginal and treaty rights could also be diminishing.

Regarding employment, many Indigenous groups expressed an interest in employment and procurement opportunities as well as assistance with training to provide required skills. Some groups would like to participate in monitoring activities, and requested that community members or Elders be present during construction and involved in reclamation work to ensure mitigation measures are completed.

Government interventions
Environment and Climate Change Canada (ECCC)

ECCC participated in the NEB review process as an intervenor and filed written evidence to inform the Board’s decision on various subject matters, including species at risk, migratory birds, wetlands, air quality, environmental emergencies, disposal at sea, meteorology and climate change. As one of the federal departments responsible for the implementation and management of the Species at Risk Act (SARA), i.e. those extirpated, endangered or threatened species that are listed on Schedule 1 of the SARA, ECCC advised the NEB on the Project’s potential adverse impacts on 70 species at risk and their critical habitat likely to be found along the Project route, including the southern mountain woodland caribou and grizzly bear. (see footnote 2)

Department of Fisheries and Oceans (DFO)

DFO was an Intervenor and Federal Authority in the EA for the Project, providing technical expertise and information related to marine fish and fish habitat, and marine mammals (including marine species at risk) to the NEB.

The evidence before the Board suggests that Burrard Inlet, the area where the expansion of the WMT would occur, is a productive marine environment, supporting a diverse assemblage of algae, invertebrates (more than 100 species), and marine fish (more than 75 species), including three SARA-listed marine fish species of special concern: Bluntnose sixgill shark, Green sturgeon, and Yelloweye rockfish (inside waters population).

Trans Mountain and DFO agree that Burrard Inlet has been cumulatively impacted by industrial and urban development, as it used to be historically one of Canada’s most productive marine fish habitats. For the construction and operation of the marine terminal, DFO is of the opinion that with the implementation of appropriate mitigation measures, effects on marine mammals and fisheries are unlikely. Should the Project proceed to the regulatory phase, DFO will require additional detailed information to support its review under the Fisheries Act. Condition 109 requires Trans Mountain to provide a copy of the Fisheries Act authorization for the marine terminal prior to commencing operations. DFO also recommended that Trans Mountain develop a follow-up monitoring program to assess the effectiveness and adequacy of its mitigating measures for the marine terminal.

Participants in the NEB hearing also noted that the Southern resident killer whale is listed as endangered under the SARA. The NEB found that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, an endangered species under the SARA, and on Indigenous cultural uses of the Southern resident killer whale. The NEB report recommended the Government take actions to reduce the potential effects of vessels on this species.

Health Canada (HC)

HC participated in the NEB review of the Project as a Commenter and submitted a Letter of Comment providing expert views on various subject matters, including air quality, drinking and recreational water quality, noise, contamination of country foods, and human health.

HC indicated that, overall, there is a low likelihood for acute and chronic health effects due to Project-related air emissions and that potential effects on drinking and recreational water during normal operation would be low. However, HC subjects such a conclusion to the effective implementation of spill control measures to limit the dispersion of crude oil into drinking water sources and recreational waters.

HC is of the view that there would be few Project-related effects due to contamination of country foods consumed by Indigenous residents, urban dwellers and area users in the vicinity of the Burnaby Terminal and the WMT during normal operations of these facilities. Impacts associated with major crude oil spills in terms of contamination of, access to, and availability of terrestrial and marine country foods for Indigenous communities could be high; however, the Board found the risk of such a spill occurring was low. In addition, the Board noted that air emissions monitoring would serve as a valuable tool in verifying and validating the results of any air dispersion modelling and imposed six conditions on Trans Mountain to address concerns raised by several participants, including HC. (see footnote 3)

Other participating federal departments and organizations

Other federal departments and organizations that participated included Transport Canada (TC), Natural Resources Canada (NRCan), Indigenous and Northern Affairs, Parks Canada Agency, and Port Metro Vancouver.

NEB assessment and conclusions

Socio-economic impacts

In assessing the socio-economic impacts of the Project, the Board considered (1) market access for Canadian oil; (2) job creation through construction and operation of the pipeline; (3) ability for local and Indigenous individuals, communities and business to develop; (4) direct economic benefits stemming from spending on pipeline materials and income revenues; and (5) tax revenues received by municipal, provincial and federal governments.

The Board found that increasing pipeline capacity to improve access to Pacific Basin markets would significantly benefit the Canadian economy, and that the economic benefits of the Project could be regionally and nationally distributed. The Board was satisfied that the 13 shippers’ firm and long-term (15 to 20 years) contracts provide a clear demonstration of the strong business support for the Project.

Trans Mountain estimated that the Project would inject $6.8 billion in capital expenditures into the Canadian economy and could provide total producer benefits of $73.5 billion due to improved market access, and that federal and provincial benefits from direct operations of the pipeline could be $23.7 billion, excluding benefits stemming from activities such as extraction, domestic processing, and exports to foreign markets.

The proponent further estimated that the Project would generate direct and indirect employment in Canada. The construction of the pipeline could generate 400 to 600 workers per spread during the construction phase. New tanks and WMT construction is expected to add between 150 and 465 workers. Trans Mountain estimated that the Project operations over the first 20 years could create 440  jobs per year, of which 313 would be in British Columbia. Indigenous groups are expected to take advantage of mutual benefit agreements signed with the Project proponent, along with provisions for Indigenous employment, training and procurement opportunities. Furthermore, it is also expected to bring modest benefits to local communities along the pipeline and contribute to improving local emergency response capacity, improving community parks and infrastructure, and developing environmental stewardship programs.

Environmental impacts

The Board assessed the environmental impacts of the Project under both the NEB Act and CEAA, 2012. The EA under CEAA, 2012 assessed (i) the physical works and activities making up the Project; (ii) the biophysical and socio-economic elements defined in section 5 of CEAA, 2012 that are likely to be affected by the Project; and (iii) the factors that must be taken into account in conducting an EA under section 19 of the CEAA, 2012. These include matters related to physical environment and soils, including water quality and quantity, fish and fish habitat, wetlands, wildlife and wildlife habitat, species at risk under the SARA, atmospheric and acoustic environment, heritage resources, traditional land and resource use, navigation and navigation safety. Even though Project-related marine shipping activities are not part of the Project, and are not regulated by the NEB, the Board considered the potential effects of increased marine shipping activities as part of its overall public interest determination under the NEB Act. However, the Board did not consider potential effects associated with other operation activities occurring upstream and downstream of the Project, including oil sands development and operations. 

The Board finds that with the implementation of Trans Mountain’s proposed environmental protection procedures and mitigation measures, and the Board’s recommended conditions, pursuant to its authority under the CEAA, 2012, the Project is not likely to cause significant adverse environmental effects. However, under the NEB Act, the Board is of the view that the operation of Project-related marine vessels would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of the Southern resident killer whale population, an endangered species that lives in the Salish Sea. As a result, the operation of Project-related marine vessels would likely result in significant adverse effects to the Southern resident killer whale, and on Aboriginal cultural uses associated with these marine mammals.

The Board noted that marine shipping is beyond its regulatory authority and it does not have the ability to impose specific mitigation conditions to address environmental effects of Project-related marine shipping, including those to mitigate effects on the Southern resident killer whale. As a result, the Board encouraged other regulatory authorities, such as TC and DFO, to explore initiatives that would aim to reduce the potential effects of marine vessels on marine mammals. In addition, Trans Mountain committed to a series of actions supporting the recovery of the Southern resident killer whale. For example, as part of its Marine Mammal Protection Program, Trans Mountain has committed to supporting the objectives and recovery measures identified in the Action Plan for the species.

In addition to Trans Mountain’s proposed mitigating measures for the Project-related environmental effects, the Board would impose on Trans Mountain 45  terms and conditions through the Project Certificate aimed at specifically addressing environmental issues raised by hearing participants (intervenors and commenters) and the Board. These conditions relate to air quality (6 conditions); GHG emissions (2); surface water quality and quantity (5); freshwater fish and fish habitat (5); soil and soil productivity (10); rare plants and lichens and vegetation (9); forest (1); weeds (2); terrestrial wildlife and wildlife habitat (9); woodland caribou (4); grizzly bear (2); other species at risk (3); parks and protected areas (8); marine sediments and water quality (1); marine fish and fish habitat (2); marine mammals (1); accidents and malfunctions (2).

The proposed Project would cross each of the Wells Gray and Groundhog subpopulations and the Mount Robson local population of southern mountain caribou. The proposed Hinton to Hargreaves pipeline reactivation segment would cross the South Jasper caribou range. These woodland caribou are listed as Threatened under Schedule 1 of the SARA. The Board agrees with ECCC’s recommendation that destruction of woodland caribou critical habitat should be avoided. The Board would impose Condition # 36 requiring Trans Mountain to file a Pre-Construction Caribou Habitat Assessment for each caribou range potentially affected by the Project that would describe the type of habitat characterized by biophysical attributes of critical habitat, as defined in the Southern Mountain Caribou Recovery Strategy.

With respect to protecting grizzly bear critical habitat, the Board notes that Trans Mountain’s proposed pipeline corridor does not avoid the North Cascades Grizzly Bear Population Unit due to potential effects on another threatened grizzly bear population unit. Nevertheless, the Board accepts Trans Mountain’s intent to route the pipeline adjacent to existing disturbance for most of the pipeline corridor length in the North Cascades Grizzly Bear Population Unit. As a result, the Board would impose Condition # 47 and Condition # 56. Condition # 47 requires Trans Mountain to file an Access Management Plan that would include monitoring for effectiveness of access control measures and adaptive management measures, if needed, based on monitoring results. Condition # 56 requires Trans Mountain to file Grizzly Bear Mitigation Plans for each vulnerable grizzly bear population unit/grizzly bear management area. As part of these plans, Trans Mountain would be required to monitor the effectiveness of mitigation measures, apply corrective measures as needed, and report on monitoring results in post-construction monitoring reports.

The Board assessed the direct GHG emissions from the Project and its related marine vessel traffic. It concluded that the direct GHG emissions from the Project construction, without any additional Board imposed mitigation conditions, would have been substantial — over 1 million tonnes of carbon dioxide (CO2) equivalent. To help mitigate this impact, the Board included a condition requiring Trans Mountain to develop an offset plan for the Project’s entire direct construction-related GHG emissions determined post-construction. Annual project emissions are estimated to be 407 000 tonnes of CO2 equivalent per year.

Although emissions from Project-related marine vessels would be a small percentage relative to Canadian GHG emissions, given that there are no regulatory reporting thresholds or specific requirements for marine GHG emissions in Canada, the Board found that GHG emissions from Project-related marine vessels would likely be significant. While the NEB does not regulate marine shipping, the NEB imposed conditions to mitigate the impacts related to these findings.

Impacts on Indigenous groups

Both social and environmental issues raised by Indigenous groups were considered and addressed through the NEB review process. The 157 conditions recommended by the NEB will require Trans Mountain to implement all commitments it made through the review process, and further implement mitigation measures for impacts that might otherwise occur to people and the environment, including in relation to air quality and greenhouse gases; water quality; soil, vegetation and wetlands; wildlife and wildlife habitat; fish and fish habitat; and marine mammals. Several of the conditions specifically address Aboriginal interests, such as requiring the proponent to continue reporting on the availability and findings of traditional use studies, hiring of Aboriginal monitors during construction, and ongoing filing of Aboriginal engagement reports. There are also specific conditions tied to concerns by the Coldwater Indian Band and Stó:lō Collective.

With respect to rights associated with subsection 35(1) of the Constitution Act, 1982, the Board concluded that, having considered all the evidence submitted in this proceeding, the consultation undertaken with Aboriginal groups, the impacts on Aboriginal interests, the proposed mitigation measures, including conditions, to minimize adverse impacts on Aboriginal interests, and Board imposed requirements for ongoing consultation, it was satisfied that the Board’s recommendation and decisions with respect to the Project are consistent with subsection 35(1) of the Constitution Act, 1982.

Impacts on landowners

More than 89 percent of the pipeline route for the Project parallels existing disturbances, including the right-of-way for Trans Mountain’s existing pipeline. The new pipeline will parallel the existing Trans Mountain pipeline for 73 percent of its total length, and other existing disturbances for 16 percent. The Project will cross provincial Crown lands (25.71 percent), private lands (73.5 percent), and Indigenous lands (0.8 percent).

The Collaborative Group of Landowners Affected by Pipelines and Metro Vancouver expressed concerns with the methodology Trans Mountain used for establishing market value for the purpose of determining the value of land rights acquired for the Project. In response to these concerns, Trans Mountain said that, based on research undertaken by accredited appraisers, B.C. Assessment valuations had been used as a basis for residential properties but values included an uplift to address any undervaluation that existed.

The NEB approved the Project routing, as it found Trans Mountain’s route selection process, route selection criteria, and level of detail for its alternative means assessment appropriate.

For any outstanding land matters, the NEB Act includes provisions (sections 85 to 103) to deal with land acquisition. Should there be a dispute between Trans Mountain and landowners, the NEB Act provides mechanisms for dispute resolution.

NEB approval

On May 19, 2016, the NEB found that the Project is in the public interest and recommended that the Certificate be issued under section 52 of the NEB Act for the construction and operation of the Project. The Certificate would be subject to 157 terms and conditions that the Board considers necessary or desirable in the public interest, if the Governor in Council were to direct the Board to issue the Certificate. If Trans Mountain does not proceed with the construction of the Project, the sunset clause provides that the Certificate shall expire five years from the date of the Certificate, unless construction in respect of section 52 facilities has commenced by that date (Condition # 5).

Pursuant to section 29 of CEAA, 2012, the Report also states that the Board is of the view that with the implementation of Trans Mountain’s environmental protection procedures, and full compliance with the Board’s recommended terms and conditions, the Project is not likely to cause significant adverse environmental effects. The Report includes the Board’s recommended follow-up program to be implemented in respect of the Project.

Interim strategy and measures for project reviews

In January 2016, the Government announced an interim strategy to guide its decisions on major projects pending the outcome of the ongoing reviews of Canada’s environmental assessment and regulatory processes. Under this approach, the Government articulated a commitment to enhance Indigenous and public consultations as well as an assessment of upstream GHG emissions to inform its decision on projects. To support these activities, the Governor in Council extended its timelines by four months to enable robust engagement. Below is a summary of these activities.

Public consultation

In line with the Government’s Interim Strategy for assessing major energy projects, the Minister of Natural Resources set up a three-member Ministerial Panel (the Panel) for the Project in May 2016. The Panel’s mandate was to solicit public input to inform the Government’s decision on the Project and at the same time provide an opportunity for interested individuals and groups that did not obtain intervenor status during the NEB hearing to share their views. The Panel had to (i) review and consider input from the public; (ii) meet with local stakeholder representatives to engage the public and impacted communities along the pipeline and shipping route; (iii) meet with Indigenous groups that wished to share their views with the Panel, noting that the Panel’s work will complement, not substitute, the Crown consultations; and (iv) submit a report to the Minister of Natural Resources no later than November 1, 2016.

In July and August 2016 the panel held 44 meetings in AB and B.C. attended by 2 400 people and 650 participants made direct presentations to the Panel. The Panel also received 20 154 email submissions from individuals and non-governmental organizations (NGOs), the majority of which were critical of the Project, citing First Nations rights, climate change, other environmental impacts and the need to transition to renewable energy. The Minister of Natural Resources received a summary report from the Panel on November 1, 2016, that was made public.

On behalf of the Panel, NRCan designed and managed at the same time an online questionnaire and portal to solicit public input on the Project. The portal accepted public input from June 30 to September 30, 2016. A total of 35 258 responses were submitted, and 27 616 people completed the questionnaire. A majority of respondents were in favour of the Project, citing the public interest and economic benefits for Canada. A summary report of the questionnaire was made public.

About 77 per cent of questionnaire participants supported the Project, while 98 per cent of those who sent emails opposed it. However, the majority of participants in the Panel meetings opposed the Project.

In making its decision on the Project, the Government considered the Panel’s report and the questions the Panel outlined.

Crown consultation

The Crown has a legal duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights. The Crown relied on both the NEB review process and its own consultative activities to meet its duty to consult potentially impacted Indigenous groups. Consistent with the approach taken on other major pipeline projects, the consultation process with potentially impacted Indigenous groups was carried out in four phases. The phases are

  • (a) Phase I — Early engagement (December 2013–April 2014): The Crown communicated project information and the planned Crown consultation process to potentially affected Indigenous groups via correspondence and a series of early engagement meetings;
  • (b) Phase II — NEB hearings (April 2014–February 2016): Indigenous groups were able to participate in the NEB hearing process as commenters or intervenors in order to have their concerns placed on the hearing record. The Crown used the NEB hearing process, as well as correspondence and meetings with Indigenous groups, to inform itself about the Project and the nature of any adverse impacts on Aboriginal rights and title, to understand Indigenous groups’ issues and concerns, and to consider mitigation measures proposed by the proponent and/or recommended by the NEB in the form of terms and conditions (including proponent commitments that may address potential adverse impacts on rights);
  • (c) Phase III — Government decision (February 2016–November 2016): the Crown engaged in consultation meetings and exchanged correspondence with Indigenous groups in order to identify each Indigenous group’s issues and concerns that had not been adequately addressed by the NEB’s conditions or by legally binding proponent commitments. The Crown also used these meetings to identify and discuss accommodation proposals and incremental measures being considered by the Government of Canada.
  • (d) Phase IV — Regulatory authorizations (if necessary): following a GIC decision to approve the Project, implicated departments will consult with Indigenous groups prior to the issuance of any necessary regulatory permits.

To enable deeper consultation with Indigenous peoples, on June 3, 2016, the Governor in Council approved a four-month extension to the legislated timelines for a decision on the Project, moving the final date for a decision to December 19, 2016.

Government response to what was heard

Environment

a. Risk of spills

Communities are deeply concerned about the risk and impacts that oil spills pose to their land, air, water and communities. In addition to the terms and conditions related to spills identified by the NEB, land-based oil spills are subject to both federal and provincial jurisdiction. Federally regulated pipelines are subject to NEB regulation and oversight, which requires operators to develop comprehensive emergency management programs and collaborate with local responders in the development of these programs. B.C. also recently implemented regulations under the provincial Environmental Management Act to strengthen provincial oversight and require industry and government to collaborate in response to spills in B.C.

The Government recently updated its world-leading pipeline safety regime through the Pipeline Safety Act, which came into force in June 2016. The Act implements $1 billion in “absolute liability” for companies operating major crude oil pipelines to clarify that operators will be responsible for all costs associated with spills irrespective of fault up to $1 billion; operators remain liable on an unlimited basis beyond this amount when they are negligent or at fault. The Act also requires proponents to carry cash on hand to ensure they are in a position to immediately respond to emergencies.

With respect to ship source spills, the Government recently announced $1.5 billion in new investment in a national Oceans Protection Plan to enhance its world-leading marine safety regime. The Oceans Protection Plan has four main priority areas:

  • creating a world-leading marine safety system that improves responsible shipping and protects Canada’s waters, including new preventive and response measures;
  • restoring and protecting the marine ecosystems and habitats, using new tools and research;
  • strengthening partnerships and launching co-management practices with Indigenous communities, including building local emergency response capacity; and
  • investing in oil spill cleanup research and methods to ensure that decisions taken in emergencies are evidence-based.

The Plan responds to concerns related to potential marine spills by strengthening the Coast Guard’s ability to take command in marine emergencies, toughening requirements for industry response to incidents, and by enhancing Indigenous partnerships.

b. Impacts on Southern resident killer whale

In its report, the NEB concluded that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale population, which is of unique cultural and spiritual significance to Indigenous groups. As a result, the Board has encouraged other regulatory authorities, such as TC and DFO, to explore initiatives that would aim to reduce the potential effects of marine vessels on marine mammals.

The Government is committed to implementing actions to address multiple cumulative effects to support recovery of the Southern resident killer whale. The proposed Action Plan for Southern resident killer whales sets out the measures to achieve recovery objectives and DFO is working with partners to complete those actions. Trans Mountain committed to a series of actions supporting the recovery of the Southern resident killer whale. For example, as part of its Marine Mammal Protection Program, Trans Mountain has committed to support the objectives and recovery measures identified in the Action Plan for the species.

The recently announced Oceans Protection Plan provides new tools to mitigate potential impacts, including a Coastal Environmental Baseline and Cumulative Effects Program; a whale detection system; a new Coastal Restoration Fund; and an immediate science-based review of the effectiveness of current management and recovery actions under way for the Southern resident killer whale, which will be completed by summer 2017 and seek to identify further areas for immediate improvement in recovery efforts and priorities for new or enhanced action efforts.

The Government will work in partnership with Indigenous groups in implementing actions. Indigenous groups possess unique knowledge of the Southern resident killer whale that needs to be fully integrated into the plan, and the success of the recovery is essential to their culture and way of life.

c. Climate change

ECCC assessed the GHG emissions associated with the upstream activities directly related to the Project and released a draft assessment report for public comment on May 19, 2016. ECCC projects that the upstream GHG emissions in Canada resulting from upstream activities associated with the expanded Trans Mountain pipeline could range from 20.3 to 25.7 megatonnes (Mt) of CO2 equivalent per year. When considering only the additional capacity that the Project is adding to the Trans Mountain pipeline system, upstream emissions could range from 13 to 15 Mt of CO2 equivalent per year.

The assessment concluded that incremental emissions are unlikely to be expected as oil production is expected to grow by more than the capacity of the expanded line regardless of whether the pipeline is built. The final assessment report has been released and posted on the Canadian Environmental Assessment Agency’s document online registry.

Through its Climate Leadership Plan, the Government of Alberta is committing to cap oil sands emissions at 100 Mt of CO2 per year. This will limit future potential upstream GHG emissions associated with the Project. The Project does not impact the emissions projections that underpin the plan to meet or exceed Canada’s 2030 target.

Impacts on Indigenous rights and interests

a. Adequacy of consultations

Near the end of the extended time frame for decision, several Indigenous groups requested further extensions of the legislated time limit in order to undertake further consultations. The Government of Canada considered these requests and decided not to further extend the timelines. After almost two years of consultations and with reference to the consultation record, the Government of Canada determined that consultations had been reasonable both procedurally and substantively, and that there was no reasonable prospect that additional time would alter or enhance the outcome.

To evaluate the adequacy of the consultations, including accommodations, NRCan assessed each Phase of the process, and evaluated a range of elements including the opportunities for engagement, issues raised, proposed mitigation measures, the Board responses and conditions and other relevant measures. The assessment is reflected in a written report, the Consultation and Accommodation Report (CAR). The CAR documents the Crown’s consultation process with 117 Indigenous groups.

Although not every concern raised by Indigenous groups was expressly addressed or accommodated through the process, accommodations were assessed as being reasonable in the circumstances. The Crown’s assessment took into account Project modifications, proponent commitments and agreements entered into with Indigenous groups, the Board conditions that would be legally binding in a potential Certificate of Public Convenience and Necessity and British Columbia’s Environmental Assessment Office’s proposed conditions for a provincial Environmental Assessment certificate. Additionally, it was recognized that other measures would serve to lessen or avoid potential adverse impacts on Indigenous interests including the commitment to establish an Indigenous Advisory and Monitoring Committee, the Action Plan for the Recovery of the Northern and Southern resident killer whale (mandated under the SARA), and the newly announced Oceans Protection Plan.

Taking into account all of the proposed measures including the NEB Conditions and Project-related Crown commitments, the Crown concluded that Indigenous concerns would be reasonably accommodated and that the consultation process for the Project upheld the honour of the Crown.  

b. Environmental and economic interests

While the Government expects that the enforceable conditions imposed and overseen by the NEB will serve to address, avoid, and mitigate the majority of potential and known impacts to Aboriginal rights associated with the Trans Mountain Expansion project, the Government is also advancing two new initiatives to respond to environmental and economic interests expressed during consultations, an Indigenous Advisory and Monitoring Committee and an Economic Pathways Partnership.

These measures are designed to address impacts to rights and respond to broader issues raised during consultations — namely, Indigenous communities’ role in project governance, oil spill response, and economic benefits.

First, the Government will co-develop an Indigenous Advisory and Monitoring Committee with Indigenous groups along the Trans Mountain pipeline corridor, with the understanding that the Committee would only become operational when a Final Investment Decision is made by the proponent. Co-development of this governance body acknowledges and respects the unique connection and constitutionally protected interests that Indigenous people have over their traditional territories. It will provide a predictable, transparent and accountable forum for Indigenous communities to share information and to advise the NEB over the project life-cycle.

The Committee will be mandated to provide advice to the NEB and other regulators on environmental, safety and socio-economic issues related to the performance of the Project, the broader NEB-regulated pipeline corridor, the marine terminal and marine shipping over the life-cycle of the Trans Mountain Expansion project, with a near-term focus on construction and post-construction phases of the Trans Mountain Expansion pipeline.

The Government also recognizes a majority of potentially impacted Indigenous communities along the pipeline and marine shipping routes have underscored that this project needs to result in socio-economic benefits for their communities. Through NEB conditions 11 and 12, the proponent will be required to include Indigenous Peoples in employment and business opportunities, as well as training and education plans for the Project. The Government will also advance a new Economic Pathways Partnership to complement actions taken by the proponent to support Indigenous groups taking full advantage of these opportunities. In this regard, the Government will mobilize existing federal programs to communities along the Trans Mountain Expansion pipeline in a timely and efficient manner so that these communities have the tools to maximize every opportunity that the Project presents.

Conclusions

In making its decision on the Project, the Government has considered, among other things, the NEB’s recommendation report, the assessment of upstream GHG emissions, the views of the public gathered through the Panel and an online questionnaire and enhanced consultations with Indigenous Peoples.

In considering this information, the Governor General in Council, on the recommendation of the Minister of Natural Resources:

  • (a) pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, and taking into account the terms and conditions identified by the NEB, determines that the Trans Mountain Expansion Project is not likely to cause significant adverse environmental effects, and directs the NEB to issue an environmental assessment decision statement;
  • (b) pursuant to subsection 54(1) of the National Energy Board Act, directs the NEB to issue Certificate of Public Convenience and Necessity to Trans Mountain for the proposed construction and operation of the Project, subject to the 157 terms and conditions identified by the NEB; and
  • (c) pursuant to subsection 21(2) of the National Energy Board Act, approves the issuance by the NEB to Trans Mountain Amending Orders AO-002-OC-49 and AO-003-OC-2.
Department contact

For more information, please contact

Terry Hubbard
Director General Petroleum Resources Branch
Natural Resources Canada
Telephone: 343-292-6165

ORDER AO-002-OC-49

IN THE MATTER OF the National Energy Board Act (the NEB Act) and the regulations made thereunder; and

IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, (CEA Act) and the regulations made thereunder; and

IN THE MATTER OF an application pursuant to sections 52, 58 and 21 of the NEB Act and section 44 of the National Energy Board Onshore Pipeline Regulations (OPR), dated 16 December 2013, by Trans Mountain Pipeline ULC (Trans Mountain) to construct and operate the Trans Mountain Expansion Project (Project) between Edmonton, Alberta, and Burnaby, British Columbia, filed with the National Energy Board (NEB or Board) under File OF-Fac-T260-2013-03 02.

BEFORE the Board on 3 May 2016.

WHEREAS the Board issued Certificate of Public Convenience and Necessity OC-49 (CPCN OC-49) to Terasen Pipelines [Trans Mountain] Inc. authorizing the construction and operation of a pipeline loop and associated facilities extending from Hinton, Alberta to Hargreaves (a location near Rearguard, British Columbia) (TMX-Anchor Loop), and CPCN OC-49 came into force on 30 November 2006;

AND WHEREAS through a series of transactions, Trans Mountain is the current holder of CPCN OC-49;

AND WHEREAS the application included a request to transfer the operation of the active 150 km NPS 36 pipeline between Hinton, Alberta and Hargreaves (a location near Rearguard, British Columbia) from the TMX-Anchor Loop to put into service on Line 2 of the Project (Transfer Segment), as required for operation of Line 2 of the Project;

AND WHEREAS the application included a request for an order pursuant to section 44 of the OPR for the deactivation of the Wolf Pump Station as it would not be required for service for the Project;

AND WHEREAS the Board held a public hearing in respect of the Project pursuant to Hearing Order OH-001-2014;

AND WHEREAS the Panel had regard to all considerations that were directly related to the Project and were relevant, including environmental matters, pursuant to Part III of the NEB Act, and conducted an environmental assessment of the Project pursuant to the CEA Act;

AND WHEREAS the Board’s recommendations and decisions on the application for the Project, and reasons, are set out in the OH-001-2014 National Energy Board Report (Report);

AND WHEREAS the Board submitted its Report to the Minister recommending that a new Certificate be issued and two existing Certificates be amended for the Project pursuant to subsections 52(1) and 21(2) of the NEB Act;

AND WHEREAS the Board is of the view that, should the Project be approved, it is necessary to vary CPCN OC-49 to remove the Transfer Segment as this segment would now be part of the Certificate authorizing construction and operation of Line 2 of the Project;

AND WHEREAS the attached Schedule A describes specifications for the Transfer Segment, and the Wolf Pump Station being deactivated;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2016-1069 dated the 29 November 2016, has approved the issuance of this Amending Order to CPCN OC-49;

IT IS ORDERED THAT, pursuant to section 21 of the Act, CPCN OC-49 is hereby varied to reflect the removal of the Transfer Segment; and pursuant to section 44 of the OPR, the deactivation of the Wolf Pump Station is approved, subject to the conditions marked as applicable in the “OC49” column below.

In these conditions, the following terms are defined as:

Appropriate Government Authorities

Federal, Provincial, Regional or Municipal government departments or agencies with jurisdiction, statutory obligations, regulatory oversight or a decision-making role in relation to the subject-matter of the specific condition. For location-specific conditions or phased filings, this is limited to those with such a role in relation to the geographic location to which the condition filing applies. (Aboriginal groups are treated separately and listed separately in each applicable condition.)

Commencing operations

The Project is opened for oil storage and transmission. Unless otherwise specified, “prior to commencing operations” means an action must be completed prior to commencing operation of any component of the Project, and “after commencing operations” means an action must be completed after all components of the Project are operating.

Construction

Any in-field activity that may have an effect on the environment and that is necessary for installing, deactivating, reactivating (see footnote 4) or decommissioning, or preparing to install, deactivate, reactivate (see footnote 5) or decommission, any component of the Project. Construction activities include, clearing, mowing, grading, trenching, drilling, boring, and blasting. Construction activities do not include activities associated with routine surveying operations or data collection activities, such as geotechnical investigations (e.g., geophysical surveys, bore holes, and test pits), activities required to obtain integrity information on the reactivation pipeline segments, or operations and maintenance activities (to which NEB “Operations and Maintenance Activities on Pipelines under the National Energy Board Act – Requirements and Guidance Notes” apply).

Construction at the Westridge Marine Terminal also includes construction activities occurring in the marine environment that are necessary for installing, or preparing to install, any component of the Westridge Marine Terminal expansion. This includes dredging, blasting, and pile drilling.

Consultation

Unless otherwise specified in a condition, Trans Mountain’s consultation must be carried out in a manner that:

  • a) provides, to those to be consulted:
    • i) notice of the matter in sufficient form and detail to allow them to prepare their views or information on the matter;
    • ii) a reasonable period for them to prepare those views or information; and
    • iii) an opportunity to present those views or information to Trans Mountain; and
  • b) considers, fully and impartially, the views or information presented;
  • c) provides, to those in a) who request it, a draft summary of the consultation undertaken with that party, and a reasonable period for them to provide feedback to Trans Mountain; and
  • d) provides, to those in a) who request it, a copy of the NEB filing receipt for, or notice of, the condition filing to which the consultation pertained.

Dry commissioning

Dry commissioning involves the systematic inspection and testing of mechanical, piping, electrical, instrumentation, control, and communications systems, prior to the introduction of process fluids, to ensure that they are ready for the introduction of fluids and are expected to function as intended.

For approval

Where a condition requires a filing or filings for NEB approval, Trans Mountain must not commence the indicated activity until the NEB issues its written approval of that filing or filings.

Including

Use of this term, or any variant of it, is not intended to limit the elements to just those listed. Rather, it implies minimum requirements with the potential for augmentation, as appropriate.

Line 1

After the expansion, the 1,147 km Line 1 pipeline will consist of, combined, the following pipeline segments, including segments to be reactivated and currently operating TMPL segments:

  • the existing 229 km of 609.6 mm outside diameter (NPS 24) and 89 km of 762.0 mm outside diameter (NPS 30) pipeline segments from Edmonton, AB, to Hinton, AB;
  • the reactivated 150 km of NPS 24 pipeline segment from Hinton, AB, to Hargreaves, B.C. (built in 1957);
  • the existing 273 km of NPS 24 pipeline segment from Hargreaves, B.C., to Darfield, B.C.;
  • the reactivated 43 km of NPS 24 pipeline segment from Darfield, B.C., to Black Pines, B.C. (built in 1953);
  • the existing 325 km of NPS 24 and 38 km of NPS 30 pipeline segments from Black Pines, B.C., to the Burnaby Terminal, B.C..

Line 2

After the expansion, the approximately 1,180 km Line 2 pipeline will consist of, combined, the new transmission pipeline segments and the two currently operating TMPL segments transferring to Line 2 service:

  • approximately 339 km of new 914 mm outside diameter (NPS 36) pipeline from Edmonton, AB, to Hinton, AB;
  • the existing 150 km of NPS 36 pipeline segment from Hinton. AB, to Hargreaves, B.C. (built in 2008);
  • approximately 121 km of new 1067 mm outside diameter (NPS 42) pipeline from Hargreaves, B.C., to Blue River, B.C.;
  • approximately 158 km of new NPS 36 pipeline from Blue River, B.C., to Darfield, B.C.;
  • the existing 43 km of NPS 30 pipeline segment from Darfield to Black Pines (built in 1957); and
  • approximately 368 km of new NPS 36 pipeline from Black Pines, B.C., to the Burnaby Terminal.

Monitoring

Observing the environmental and socio-economic effects of the Project for the purposes of assessing and measuring the effectiveness of mitigation measures undertaken, identifying unanticipated environmental and socio-economic issues, and, based on the results of these activities, determining any remedial actions required.

From an engineering perspective, monitoring involves regularly observing pipelines, terminals and pump stations (e.g., through surveys, patrols, inspections, testing, instrumentation) to ensure their operation is within defined parameters, with the goal of identifying any issues or potential concerns (e.g., pipeline integrity, geohazards, erosion, security) that may compromise the protection of the pipelines, terminals, pump stations, property, persons, and the environment.

Monthly (in relation to a condition filing or posting)

Unless otherwise specified in a condition, a monthly filing shall be made on the 5th working day of the calendar month following the month to which the filing pertains.

NEB or Board

National Energy Board

New delivery pipelines

Collectively, the two new NPS 30 oil delivery lines between Trans Mountain’s Burnaby Terminal and its Westridge Marine Terminal (approximately 2.6 km for the tunnel option and 3.6 km for the street option).

Officer of the company

Where a condition requires a filing to be signed by an officer of the company, the filing must include a statement confirming that the signatory to the filing is an officer of the company duly authorized for that purpose.

Project

The Trans Mountain Expansion Project in all its components, including pipeline construction, reactivation, and changes to operating conditions resulting in operation as Line 1 and Line 2; deactivation, reactivation, construction and operation of or at the respective pump stations; decommissioning of 2 tanks and construction and expanded operation at the existing Edmonton, Sumas and Burnaby Terminals and the Westridge Marine Terminal; construction and operation of the new delivery pipelines; and all infrastructure.

The Project does not include Project-related marine shipping.

Quarterly (in relation to a condition filing or posting)

Unless otherwise specified in a condition, a quarterly filing shall be made on the 10th working day of the quarter following the quarter to which the filing pertains.

Temporary infrastructure

All structures or sites necessary for pipeline, terminal and pump station construction, reactivation, deactivation, modification and expansion approved as part of the Project. Examples of infrastructure include construction camps, stockpile sites, contractor yards, laydown areas, temporary work space, borrow pits, roads, bridges, snow pads, and temporary power supply lines necessary for operating infrastructure and equipment during the construction phase.

Third party (in relation to a report, review or assessment)

An independent consultant, expert, or contractor that, except for receiving payment for acting as a third party, is unaffiliated with Trans Mountain, Kinder Morgan Canada Inc., the principal consultants of either, or any other corporate entity with a financial interest in the Project. A third party is, because of their knowledge, training, and experience, qualified and competent to perform an assessment or review, and was not involved in developing the manual, report, plan, program, or policy being assessed or reviewed.

TMPL

The existing operating Trans Mountain Pipeline system.

Trans Mountain

Trans Mountain Pipeline ULC, as general partner of Trans Mountain Pipeline L.P.

Government authorities are mentioned in certain conditions. If a particular authority’s name changes in the future, Trans Mountain’s requirements relating to that authority would rest with its successor. Similarly, if a particular authority’s function is assumed by another authority, Trans Mountain’s requirements relating to that function would rest with the new authority.

Note: Due to its size, the table is presented on a separate Web page. Please click on the following link to view the table.

SCHEDULE A

National Energy Board Order AO-002-OC-49

Transfer Segment specifications

Location

Hinton, AB to Hargreaves, BC

Project Type

Modification – transfer segment to Line 2 service

Approximate Length (km)

150

Minimum Wall Thickness (mm)

11.8

Outside Diameter

914 mm (NPS 36)

Pipe Grade

483 MPa (X70)

Pipe Material Standard

API 5L

External Coating

Fusion bond epoxy

Product

Low vapour pressure crude oil

Maximum Operating Pressure (kPa)

9 930 and 10 875

Pumping facility specifications

Project Type

Deactivation

Facility Type

Pump station

Location (see footnote 6)

Wolf Pump Station Approximate KP (see footnote 7) 188 Yellowhead County, AB

Lat.: 53.59529505 Long.: -116.0558409

Description

Two pump units at 3 730 kW (5,000 hp)

Product

Low vapour pressure crude oil

ORDER AO-003-OC-2

IN THE MATTER OF the National Energy Board Act (the NEB Act) and the regulations made thereunder; and

IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, (CEA Act) and the regulations made thereunder; and

IN THE MATTER OF an application pursuant to sections 52, 58 and 21 of the NEB Act and section 44 of the National Energy Board Onshore Pipeline Regulations, dated 16 December 2013, by Trans Mountain Pipeline ULC (Trans Mountain) to construct and operate the Trans Mountain Expansion Project (Project) between Edmonton, Alberta, and Burnaby, British Columbia, filed with the National Energy Board (NEB or Board) under File OF-Fac-T260-2013-03 02.

BEFORE the Board on 3 May 2016.

WHEREAS the Board issued Certificate of Public Convenience and Necessity OC-2 (CPCN OC-2) to Trans Mountain Oil Pipeline Company authorizing the construction and operation of an oil pipeline from Edmonton, Alberta to Burnaby, British Columbia, and CPCN OC-2 came into force on 19 August, 1960;

AND WHEREAS through a series of transactions, Trans Mountain is the current holder of OC-2;

AND WHEREAS the application included a request for authorization to:

  • decommission one tank at the Edmonton Terminal West Tank Area and one tank at the Burnaby Terminal;
  • reactivate a150 km NPS 24 pipeline segment between Hinton, Alberta and Hargreaves (a location near Rearguard, British Columbia), a 43 km NPS 24 pipeline segment from Darfield to Black Pines, and the Niton Pump Station, all of which were authorized under CPCN OC-2; and
  • remove from CPCN OC-2 the 43 km NPS 30 pipeline segment between Darfield and Black Pines (transferring from the existing Trans Mountain Pipeline system to Line 2) (collectively Line 1 Work).

AND WHEREAS the Board held a public hearing in respect of the Project pursuant to Hearing Order OH-001-2014;

AND WHEREAS the Panel had regard to all considerations that were directly related to the Project and were relevant, including environmental matters, pursuant to Part III of the NEB Act, and conducted an environmental assessment of the Project pursuant to the CEA Act;

AND WHEREAS the Board’s recommendations and decisions on the application for the Project, and reasons, are set out in the OH-001-2014 National Energy Board Report (Report);

AND WHEREAS the Board submitted its Report to the Minister recommending that a new Certificate be issued and two existing Certificates be amended for the Project pursuant to subsections 52(1) and 21(2) of the NEB Act;

AND WHEREAS the Board is of the view that, should the Project be approved, amendments to vary CPCN OC-2 are required;

AND WHEREAS the attached Schedule A describes all pipe segments that will form Line 1 upon Project completion, and specifications for Line 1 Work;

AND WHEREAS the Governor in Council, by Order in Council No. P.C. 2016-1069 dated the 29 November 2016, has approved the issuance of Amending Order to CPCN OC-2;

IT IS ORDERED that pursuant to subsection 21(2) of the NEB Act, CPCN OC-2 is hereby varied to approve Line 1 Work, subject to the conditions marked as applicable in the “OC2” column below.

In these conditions, the following terms are defined as:

Appropriate Government Authorities

Federal, Provincial, Regional or Municipal government departments or agencies with jurisdiction, statutory obligations, regulatory oversight or a decision-making role in relation to the subject-matter of the specific condition. For location-specific conditions or phased filings, this is limited to those with such a role in relation to the geographic location to which the condition filing applies. (Aboriginal groups are treated separately and listed separately in each applicable condition.)

Commencing operations

The Project is opened for oil storage and transmission. Unless otherwise specified, "prior to commencing operations" means an action must be completed prior to commencing operation of any component of the Project, and "after commencing operations" means an action must be completed after all components of the Project are operating.

Construction

Any in-field activity that may have an effect on the environment and that is necessary for installing, deactivating, reactivating (see footnote 8) or decommissioning, or preparing to install, deactivate, reactivate (see footnote 9) or decommission, any component of the Project. Construction activities include, clearing, mowing, grading, trenching, drilling, boring, and blasting. Construction activities do not include activities associated with routine surveying operations or data collection activities, such as geotechnical investigations (e.g., geophysical surveys, bore holes, and test pits), activities required to obtain integrity information on the reactivation pipeline segments, or operations and maintenance activities (to which NEB "Operations and Maintenance Activities on Pipelines under the National Energy Board Act – Requirements and Guidance Notes" apply).

Construction at the Westridge Marine Terminal also includes construction activities occurring in the marine environment that are necessary for installing, or preparing to install, any component of the Westridge Marine Terminal expansion. This includes dredging, blasting, and pile drilling.

Consultation

Unless otherwise specified in a condition, Trans Mountain’s consultation must be carried out in a manner that:

  • a) provides, to those to be consulted:
    • i) notice of the matter in sufficient form and detail to allow them to prepare their views or information on the matter;
    • ii) a reasonable period for them to prepare those views or information; and
    • iii) an opportunity to present those views or information to Trans Mountain; and
  • b) considers, fully and impartially, the views or information presented;
  • c) provides, to those in a) who request it, a draft summary of the consultation undertaken with that party, and a reasonable period for them to provide feedback to Trans Mountain; and
  • d) provides, to those in a) who request it, a copy of the NEB filing receipt for, or notice of, the condition filing to which the consultation pertained.

Dry commissioning

Dry commissioning involves the systematic inspection and testing of mechanical, piping, electrical, instrumentation, control, and communications systems, prior to the introduction of process fluids, to ensure that they are ready for the introduction of fluids and are expected to function as intended.

For approval

Where a condition requires a filing or filings for NEB approval, Trans Mountain must not commence the indicated activity until the NEB issues its written approval of that filing or filings.

Including

Use of this term, or any variant of it, is not intended to limit the elements to just those listed. Rather, it implies minimum requirements with the potential for augmentation, as appropriate.

Line 1

After the expansion, the 1,147 km Line 1 pipeline will consist of, combined, the following pipeline segments, including segments to be reactivated and currently operating TMPL segments:

  • the existing 229 km of 609.6 mm outside diameter (NPS 24) and 89 km of 762.0 mm outside diameter (NPS 30) pipeline segments from Edmonton, AB, to Hinton, AB;
  • the reactivated 150 km of NPS 24 pipeline segment from Hinton, AB, to Hargreaves, B.C. (built in 1957);
  • the existing 273 km of NPS 24 pipeline segment from Hargreaves, B.C., to Darfield, B.C.;
  • the reactivated 43 km of NPS 24 pipeline segment from Darfield, B.C., to Black Pines, B.C. (built in 1953);
  • the existing 325 km of NPS 24 and 38 km of NPS 30 pipeline segments from Black Pines, B.C., to the Burnaby Terminal, B.C..

Line 2

After the expansion, the approximately 1,180 km Line 2 pipeline will consist of, combined, the new transmission pipeline segments and the two currently operating TMPL segments transferring to Line 2 service:

  • approximately 339 km of new 914 mm outside diameter (NPS 36) pipeline from Edmonton, AB, to Hinton, AB;
  • the existing 150 km of NPS 36 pipeline segment from Hinton. AB, to Hargreaves, B.C. (built in 2008);
  • approximately 121 km of new 1067 mm outside diameter (NPS 42) pipeline from Hargreaves, B.C., to Blue River, B.C.;
  • approximately 158 km of new NPS 36 pipeline from Blue River, B.C., to Darfield, B.C.;
  • the existing 43 km of NPS 30 pipeline segment from Darfield to Black Pines (built in 1957); and
  • approximately 368 km of new NPS 36 pipeline from Black Pines, B.C., to the Burnaby Terminal.

Monitoring

Observing the environmental and socio-economic effects of the Project for the purposes of assessing and measuring the effectiveness of mitigation measures undertaken, identifying unanticipated environmental and socio-economic issues, and, based on the results of these activities, determining any remedial actions required.

From an engineering perspective, monitoring involves regularly observing pipelines, terminals and pump stations (e.g., through surveys, patrols, inspections, testing, instrumentation) to ensure their operation is within defined parameters, with the goal of identifying any issues or potential concerns (e.g., pipeline integrity, geohazards, erosion, security) that may compromise the protection of the pipelines, terminals, pump stations, property, persons, and the environment.

Monthly (in relation to a condition filing or posting)

Unless otherwise specified in a condition, a monthly filing shall be made on the 5th working day of the calendar month following the month to which the filing pertains.

NEB or Board

National Energy Board

New delivery pipelines

Collectively, the two new NPS 30 oil delivery lines between Trans Mountain’s Burnaby Terminal and its Westridge Marine Terminal (approximately 2.6 km for the tunnel option and 3.6 km for the street option).

Officer of the company

Where a condition requires a filing to be signed by an officer of the company, the filing must include a statement confirming that the signatory to the filing is an officer of the company duly authorized for that purpose.

Project

The Trans Mountain Expansion Project in all its components, including pipeline construction, reactivation, and changes to operating conditions resulting in operation as Line 1 and Line 2; deactivation, reactivation, construction and operation of or at the respective pump stations; decommissioning of 2 tanks and construction and expanded operation at the existing Edmonton, Sumas and Burnaby Terminals and the Westridge Marine Terminal; construction and operation of the new delivery pipelines; and all infrastructure.

The Project does not include Project-related marine shipping.

Quarterly (in relation to a condition filing or posting)

Unless otherwise specified in a condition, a quarterly filing shall be made on the 10th working day of the quarter following the quarter to which the filing pertains.

Temporary infrastructure

All structures or sites necessary for pipeline, terminal and pump station construction, reactivation, deactivation, modification and expansion approved as part of the Project. Examples of infrastructure include construction camps, stockpile sites, contractor yards, laydown areas, temporary work space, borrow pits, roads, bridges, snow pads, and temporary power supply lines necessary for operating infrastructure and equipment during the construction phase.

Third party (in relation to a report, review or assessment)

An independent consultant, expert, or contractor that, except for receiving payment for acting as a third party, is unaffiliated with Trans Mountain, Kinder Morgan Canada Inc., the principal consultants of either, or any other corporate entity with a financial interest in the Project. A third party is, because of their knowledge, training, and experience, qualified and competent to perform an assessment or review, and was not involved in developing the manual, report, plan, program, or policy being assessed or reviewed.

TMPL

The existing operating Trans Mountain Pipeline system.

Trans Mountain

Trans Mountain Pipeline ULC, as general partner of Trans Mountain Pipeline L.P.

Government authorities are mentioned in certain conditions. If a particular authority’s name changes in the future, Trans Mountain’s requirements relating to that authority would rest with its successor. Similarly, if a particular authority’s function is assumed by another authority, Trans Mountain’s requirements relating to that function would rest with the new authority.

Note: Due to its size, the table is presented on a separate Web page. Please click on the following link to view the table.

SCHEDULE A

National Energy Board Order AO-003-OC-2

Line 1 pipeline specifications

Location

Edmonton, AB to Edson, AB

Edson, AB to Hinton, AB

Hinton, AB to Hargreaves, BC

Hargreaves, BC to Darfield, BC

Darfield, BC to Black Pines, BC

Black Pines, BC to Kamloops, BC

Kamloops, BC to Burnaby Tank Terminal, BC

Project Type

Existing segment

Existing segment

To be reactivated

Existing segment

To be reactivated

Existing segment

Existing segment

Approximate Length (km)

229

89

150

273

43

38

325

Outside Diameter

609 mm (NPS 24)

762 mm (NPS 30)

609 mm (NPS 24)

609 mm (NPS 24)

609 mm (NPS 24)

762 mm (NPS 30)

609 mm (NPS 24)

Pipe Grade

359 MPa (X52)

Pipe Material Standard

API 5L

External Coating

Coal tar enamel

Product

Low vapour pressure crude oil

Tank decommissioning specifications

Project Type

Decommissioning

Facility Type

Tank

Location

Edmonton Terminal West Tank Area Edmonton, AB

Burnaby Terminal Burnaby, BC

Tank Number

9

74

Shell Capacity

12 720 m3 (80,000 bbl)

12 720 m3 (80,000 bbl)

Pipeline reactivation specifications

Location

Hinton, AB to Hargreaves, BC

Darfield, BC to Black Pines, BC

Project Type

Reactivation

Approximate Length (km)

150

43

Wall Thickness (mm)

7.9

7.9

Outside Diameter

610 mm (NPS 24)

Pipe Grade

359 MPa (X52)

359 MPa (X52)

Pipe Material Standard

API 5L

External Coating

Coal tar enamel

Product

Low vapour pressure crude oil

Maximum Operating Pressure (kPa)

To be established based on successful hydrostatic testing in accordance with CSA Z662

Pumping facility reactivation specifications

Project Type

Reactivation

Facility Type

Pump station

Location (see footnote 10)

Niton Pump Station Approximate KP (see footnote 11) 173 Niton Junction, AB

Lat.: 53.61513981; Long.: -115.8433636

Description

Two pump units at 1 492 kW (2,000 hp)

Product

Low vapour pressure crude oil

Transfer segment pipeline specifications

Location

Darfield, BC to Black Pines, BC

Project Type

Modification – transfer segment to TMEP Line 2 service

Approximate Length (km)

43

Wall Thickness (mm)

11.13

Outside Diameter

762 mm (NPS 30)

Pipe Grade

359 MPa (X52)

Pipe Material Standard

API 5L

External Coating

Coal tar enamel

Product

Low vapour pressure crude oil

Maximum Operating Pressure (kPa)

3 660 to 8 233

  • Footnote 1
    National Energy Board Report: National Energy Board Report Trans Mountain Expansion Project  OH-001-2014, May 2016, pp. 499–503.
  • Footnote 2
    For detailed information on ECCC’s assessment regarding other subject matters, see the NEB Report entitled National Energy Board Report  Trans Mountain Expansion Project OH-001-2014, dated May 2016.
  • Footnote 3
    These include Condition # 52, Condition # 53, Condition # 54, Condition # 55, Condition # 79 and Condition # 137.
  • Footnote 4
    Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31.
  • Footnote 5
    Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31.
  • Footnote 6
    Latitude and Longitude are provided in World Geodetic System 84 (WGS84) format
  • Footnote 7
    Kilometre Post – used to identify locations along Line 1
  • Footnote 8
    Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31.
  • Footnote 9
    Excluding engineering assessment and operations and maintenance activities required to meet Conditions 19 and 31.
  • Footnote 10
    Latitude and Longitude are provided in World Geodetic System 84 (WGS84) format
  • Footnote 11
    Kilometre Post – used to identify locations along Line 1