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NEB Grants Costco Late Request in Trans Mountain Review, Denied EPA Extension

The National Energy Board’s decision to grant Costco intervener status in its review of the Kinder Morgan Trans Mountain pipeline even though it had missed the deadline to apply is raising questions given that the U.S. Environmental Protection Agency (EPA) was denied its request for an extension to the same deadline.

Costco submitted a late application to participate in the review of Kinder Morgan’s proposal to triple the capacity of its pipeline to Burnaby on April 9, 2015. The company argued that it received formal notice of the pipeline’s potential impacts on its Langley property on Feb. 4, 2015, when it was served with notice for land acquisition.

In a letter sent to all interveners, the National Energy Board wrote that Costco had provided sufficient reasons for the board to consider a late submission based on the fact “the project may cross Costco’s lands and it has the potential to be directly affected.”

American authorities are nervous about Kinder Morgan’s proposal to increase oil tanker traffic by a factor of seven through the shared waters off B.C.’s coast, particularly in light of the recent slow response to a small fuel spill in Vancouver Harbour.

“A catastrophic oil spill would set the Puget Sound clean-up effort back decades, and result in billions of dollars in harm to our economy and environment,” the state’s Ecology Department officials wrote to Washington Governor Jay Inslee in 2013 in documents obtained by the Globe and Mail.

The officials also raised red flags about Canada’s oil spill response capability, writing: “B.C. lacks authority over marine waters, and their federal regime is probably a couple of decades behind the system currently in place in Washington State. … When it is spilled, we are concerned that dilbit oil may be considerably more toxic and damaging, and far more difficult to clean up, than conventional crude from Alaska.”

The documents also indicate that American officials urged the U.S. to sue the NEB for barring the EPA from participating in the hearings on the grounds that it had missed the deadline to apply.

Ultimately, the EPA was granted a lower status as a “commenter,” which does not provide the same ability to provide sworn evidence or ask questions of the proponent.

Asked why Costco was granted intervener status when the EPA was not, National Energy Board Communications Officer Tara O’Donovan told DeSmog Canada that the EPA never officially asked for intervenor status — instead, they asked for an extension to the deadline to apply. The board denied that request in this ruling “as the EPA had not outlined how it would be impacted if it was not able to submit a late application.”

“This letter did not provide any information about the EPA’s mandate, why it sought participation in the hearing, or whether it sought intervenor or commenter status. The Board is required by natural justice to make each decision solely on the basis of the information filed on its record,” O’Donovan wrote via e-mail.

The EPA subsequently filed a late application to participate as a commenter, which “included further details on the agency and the relevant information or expertise it could provide to the board.” The board then granted the EPA commenter status in an April 2, 2014, ruling.

The Globe reported this week that EPA officials wrote in e-mails that the NEB’s decision was contrary to the boards’ obligations under Canadian law. The Canadian Environmental Assessment Act requires the NEB to “consult and co-operate” with the EPA.

 “It does appear that NEB should have consulted with the U.S. (and, in turn, EPA and other such agencies) given the scope of the project which will increase tanker traffic in the [Puget] Sound. … NEB never actually sent out an offer to consult as contemplated by Section 18 of the CEAA,” wrote Courtney Weber of the agency’s Seattle office in the documents obtained by the Globe.

The National Energy Board is expected to make its recommendation to the federal government by January 2016.

The board has been criticized for eliminating all oral cross-examination of evidence during the Trans Mountain review. Many of the province of British Columbia's questions — including its request to see Kinder Morgan's oil spill response plan — have been refused. The City of Burnaby says only three of its last 217 questions were answered.

In late March, several B.C. mayors declared non-confidence in the National Energy Board and called on the federal government to put the current process on hold. The mayors also called  upon the Government of British Columbia to re-assert its role in environmental assessment and to establish a provincial process to assess the Trans Mountain proposal.

Like a kid in a candy store
When those boxes of heavily redacted documents start to pile in, reporters at The Narwhal waste no time in looking for kernels of news that matter the most. Just ask our Prairies reporter Drew Anderson, who gleefully scanned through freedom of information files like a kid in a candy store, leading to pretty damning revelations in Alberta. Long story short: the government wasn’t being forthright when it claimed its pause on new renewable energy projects wasn’t political. Just like that, our small team was again leading the charge on a pretty big story

In an oil-rich province like Alberta, that kind of reporting is crucial. But look at our investigative work on TC Energy’s Coastal GasLink pipeline to the west, or our Greenbelt reporting out in Ontario. They all highlight one thing: those with power over our shared natural world don’t want you to know how — or why — they call the shots. And we try to disrupt that.

Our journalism is powered by people just like you. We never take corporate ad dollars, or put this public-interest information behind a paywall. Will you join the pod of Narwhals that make a difference by helping us uncover some of the most important stories of our time?
Like a kid in a candy store
When those boxes of heavily redacted documents start to pile in, reporters at The Narwhal waste no time in looking for kernels of news that matter the most. Just ask our Prairies reporter Drew Anderson, who gleefully scanned through freedom of information files like a kid in a candy store, leading to pretty damning revelations in Alberta. Long story short: the government wasn’t being forthright when it claimed its pause on new renewable energy projects wasn’t political. Just like that, our small team was again leading the charge on a pretty big story

In an oil-rich province like Alberta, that kind of reporting is crucial. But look at our investigative work on TC Energy’s Coastal GasLink pipeline to the west, or our Greenbelt reporting out in Ontario. They all highlight one thing: those with power over our shared natural world don’t want you to know how — or why — they call the shots. And we try to disrupt that.

Our journalism is powered by people just like you. We never take corporate ad dollars, or put this public-interest information behind a paywall. Will you join the pod of Narwhals that make a difference by helping us uncover some of the most important stories of our time?

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