For the second time in two days Prime Minister Justin Trudeau has been called on to suspend the regulatory review process for Kinder Morgan’s Trans Mountain pipeline project in British Columbia. Final hearings for the project begin next week.

“You are going to break your campaign promise to overhaul Canada environmental regulatory regime because of your refusal to suspend or cancel the reviews of the Kinder Morgan Trans-Mountain pipeline and TransCanada’s Energy East pipeline,” Cam Fenton, 350.org’s Canadian tarsands campaigner, said in a letter sent to Trudeau Wednesday.

“If you will not show the necessary leadership to stop these reviews, people will.”

Yesterday, Burnaby, B.C. Mayor Derek Corrigan made headlines with his letter to Trudeau requesting the review of the Trans Mountain project be suspended on the grounds the current federal regulatory framework is “deeply flawed” and “inadequate.”

Trudeau’s Liberals campaigned on restoring public faith in the National Energy Board (NEB), Canada’s pipeline regulator, during last year’s federal election. Under the previous federal government, the board went through extensive changes that resulted in limited public participation in regulatory hearings and restrictions on what public concerns were considered relevant to the process.  

The federal government insists it still plans on overhauling the NEB to ensure “robust oversight and thorough environmental assessments,” but pipeline projects like Trans Mountain and Energy East will continue to proceed under the ‘old rules’ established by the Harper government.

“….You are asking us to accept a broken, illegitimate pipeline review process," Fenton stated in his letter. "You are asking us to accept a process that ignores climate change, community voices and the rights of Indigenous peoples."

Adding to the frustration of the City of Burnaby, and groups like 350.org is a statement from Trudeau during a campaign stop in Esquimalt, B.C. last August where he claimed on camera the NEB overhaul would apply to “existing projects” currently under review like Trans Mountain.

“No, they’re not going to approve it in January. Because we’re going to change the government,” Trudeau told Kai Nagata from the Dogwood Initiative in response to questions about the Trans Mountain pipeline project. “And that process needs to be redone.”

Trudeau on Kinder Morgan

Justin Trudeau says if he's Prime Minister, Kinder Morgan will have to go back to the drawing board, saying "the process needs to be redone." Find out where candidates in your riding stand: http://votebc.ca/

Posted by Dogwood Initiative on Friday, August 21, 2015

Increasing public calls for immediate NEB reform could bring an end to Trudeau’s ‘honeymoon period,’ at least on the environment profile.

The Trudeau government’s performance in Paris at the UN climate summit in December far outshone any showing by the previous federal government. Trudeau has also pledged to meet with premiers to hammer out a national framework for reducing greenhouse gas emissions within the next two months.  

Failing to quickly overhaul the National Energy Board could undermine the Trudeau government’s intentions of rebuilding the strained relationship with indigenous peoples in Canada.

The influential Assemblies of First Nations in Quebec and Labrador, Manitoba and British Columbia have all requested the Trudeau government cancel the current reviews of Trans Mountain, Energy East and the Line 3 pipeline.  

“Our First Nations in British Columbia, Manitoba and Quebec call for the establishment of a new pipeline review and assessment process, to be developed and implemented in collaboration with First Nations, that will enable a thorough and objective environmental assessment of these pipelines,” a letter signed by all three assemblies states.

The 350.org letter is part request, part ultimatum. The organization says it will use a “People’s Injunction” if the reviews of Trans Mountain and Energy East are not cancelled or at least suspended by this Friday, January 15.

According to the group’s website, a People’s Injunction is a “plan to use creative, non-violent means to ensure that the Prime Minister and the new federal government keep their promises to overhaul pipeline reviews to include climate change and community voices.” 

You can click here to read more about Prime Minister Justin Trudeau and climate change.

Image Credit: Mark Klotz via flickr

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With the May 27 deadline for evidence submission to the National Energy Board’s review of the Kinder Morgan pipeline expansion project fast approaching, the cities of Burnaby and Vancouver are stepping up.

Last Wednesday, the City of Burnaby quietly released a report [PDF] outlining the risks and possible implications of a fire at the Burnaby tanker terminal. The results, to quote Mayor Derek Corrigan, are “comprehensive and jarring.”

“It is remarkable that Kinder Morgan is even asking the citizens of Burnaby to assume such risks, but even moreso that the National Energy Board is willing to consider expanding this storage site in this location — on a hillside near thousands of residents and a busy university, and adjacent to an urban conservation area. This report clearly demonstrates that questions about the safety of this proposed tank farm expansion should be answered prior to any decisions being made by the NEB and that the Board should consider this an essential priority.”

Encompassing 60 pages, the report explores several scenarios where oil could spill and ignite at Kinder Morgan’s tank storage facility off Hastings Street, including a tank fire, explosion and a major earthquake.

Too Many Tanks, Too Little Space

According to the report, the largest potential risk to Burnaby lies in the addition of a large number of new tanks to the existing farm. In order to accommodate the increased output of the twinned pipeline, Kinder Morgan would need to increase the number of tanks at its storage facility from 12 to 26, adding 14 new larger tanks (one of which is a replacement). 

Adding in the proposed new storage tanks on the existing site greatly reduces the buffer zone between the tanks, and moves them significantly closer to the public. 

When a fire occurs at the tank farm — and the report makes it clear that no company can make a 100 per cent guarantee they won't — it will have the potential to be more severe in magnitude, and pose a much greater risk to the public. The closer the tanks are, the more likely it is that nearby storage tanks could to catch fire as well. The report notes that “the distance between storage tanks is a key design and engineering feature provided to allow firefighters to effectively isolate an active tank fire, preventing a multiple tank fire event” and that many of the potential tank fire scenarios within the Trans Mountain Tank Farm facility would be inextinguishable due to lack of safe firefighting positions.

"In order to extinguish a tank fire within the Trans Mountain Tank Farm, emergency responders could be forced to significantly risk their personal safety in order to overcome the design inadequacies of the facility. Specifically, the configuration of the tank farm on a hillside in such a tight footprint would require firefighting personnel to operate in elevated positions above the tank, exposing them to potentially excessive heat and smoke outfalls. In these instances emergency responders would likely be forced to allow the tank fire to burn out while adjacent tanks are protected." – Burnaby Fire Department

A worst case scenario tank farm fire, as set out in the report, is legitimately terrifying: a fire breaks out in one or more of the tanks. It spreads quickly through the close-set tanks, as flames burst across the tops of nearby trees and into the Burnaby Mountain Conservation Area. This cuts off road access to Simon Fraser University, exposing the thousands of people living, studying and working there to noxious burning bitumen fumes, including extremely toxic hydrogen sulfide.

The possible impact of an earthquake dumps even more fuel on the nightmare pyre. According to the report: “The potential liquid product release scenario stemming from an expected regional area seismic event would be catastrophic in nature, and has potential to release the contents of several if not all of the storage tanks simultaneously, overwhelming the facilities' retention provisions and flowing unrestricted to highly populated residential areas and sensitive environmental habitats.”

A Bitumen-coated Shoreline in Less than 72 Hours

On Friday morning, the City of Vancouver released their first new piece of evidence — a 2D computer spill model encompassing four scenarios of how oil might spread if spilled in Burrard Inlet. The City of Vancouver, City of Burnaby and Tsleil-Waututh Nation commissioned the report by spill modelling experts Genwest Systems.

The new report finds two key faults with the oil spill models submitted by Kinder Morgan as part of their application to the National Energy Board. Firstly, that Kinder Morgan’s models do not account for beached oil refloating after an initial spill, and secondly, that the supplied modelling of a spill at the Westridge Marine Terminal was ‘unrealistic’ and relied too much on the assumption that containment booms are always properly placed and always work.

The time-lapse video below shows how bitumen and condensate would spread if one of Kinder Morgan’s Aframax-sized tankers spilled 1/5th of its bitumen cargo into Burrard Inlet near the Lion’s Gate Bridge.

In all of its scenarios, Genwest Systems noted how quickly oil spreads in the confined space of Burrard Inlet. Within 72 hours, spilled oil would spread throughout Burrard Inlet to Indian Arm, the Port Moody Arms and to the outer harbour and beyond, with winds and tides spreading them even further. 

100,000 Seabirds and the Pacific Orca Pod at Risk

An additional study on the impact of a Kinder Morgan bitumen spill on local wildlife was released on Monday. Titled “Fate and Effect of Oil Spills from the Trans Mountain Expansion Project in Burrard Inlet and the Fraser River Estuary,” the report finds that the “extraordinarily high densities and numbers of sea‐ and shorebirds, marine mammals, and fish make them especially vulnerable to potentially devastating mortalities should a major oil spill occur in Burrard Inlet or the Fraser River estuary.” 

With 90 per cent of spilled oil likely to reach shorelines within 48 hours, the intertidal zones of beaches and shorelines become “effective killing zones” for sea and shorebirds. In particular, a large diluted bitumen spill near the Fraser River estuary, could potentially kill more than 100,000 birds, plus other nearby mammals. At the same time, large numbers of marine mammals including Harbour seals and porpoises — plus the southern resident Orca population — could perish. The orca pod, if affected, may risk extinction altogether. 

Kinder Morgan Responds

As media began to cover the release of the reports, Kinder Morgan forwarded an email comment to Burnaby Now. It reads: 

"The terminal in Burnaby has been operating safely for 60 years and through our maintenance, prevention and emergency preparedness programs, we are confident in our ability to prevent and respond to all kinds of incidents,” said Michael Davies, a senior director with the company. “Trans Mountain filed a preliminary risk assessment for Burnaby terminal as part of the National Energy Board review of our proposed expansion. It concludes that through design and good management practices the risk of a fire at the terminal is low. We encourage feedback on our proposed expansion and will be reviewing the report from the Burnaby Fire Department in more detail and would welcome a discussion with them to better understand and address their concerns and questions."

It is worth noting that while Kinder Morgan’s preliminary risk assessment is available online, their accident/spill preparedness plans cannot be compared against the reports from the Burnaby Fire Department or the City of Vancouver as the company has filed legal documents to prevent the public from seeing them.

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The mayors of Vancouver, Burnaby, New Westminster, City of North Vancouver, Victoria, Squamish and Bowen Island have declared their “non-confidence” in the National Energy Board’s (NEB) review of Kinder Morgan’s Trans Mountain pipeline and are calling on the federal government to put the current process on hold until a full public hearing process is re-instated.

“It has become apparent that the NEB process does not constitute a ‘public hearing’ and is completely inadequate to assess the health and safety risks of a proposed pipeline through major metropolitan areas, and the potential risks of shipping bitumen oil to Burnaby and through Burrard Inlet, the Salish Sea, and along the coastline of British Columbia,” the mayors write in their declaration.

The mayors also call upon the Government of British Columbia to re-assert its role in environmental assessment and to establish a provincial process, including public hearings, to assess the Trans Mountain proposal.

If built, the Trans Mountain pipeline system would transport more than 890,000 barrels a day of primarily diluted bitumen from the Alberta oilsands to B.C.’s west coast. Most of this heavy oil is destined for Westridge dock in Burnaby, where it would be loaded onto 400 oil tankers per year — a six-fold increase from current oil tanker traffic.

“The current hearing process does not allow for consideration of some of the most damaging aspects of the proposal — the inadequacy of emergency plans; the potential for marine oil spills; the effects of the project on climate change, and the threat it poses to our local economy,” says Vancouver Mayor Gregor Robertson. “We want to demonstrate to our residents and businesses that we are taking the potential risks seriously, and we want to work together with other municipalities in the region to protect our economy, our environment and our people.”

The mayors say the elimination of oral cross-examination from the hearing process has rendered the process inadequate. Without oral cross-examination, the municipalities have been forced to submit their questions in writing and wait on written responses back from Kinder Morgan. 

“The proponent has failed to answer the majority of questions submitted by municipalities and other intervenors,” the mayors write in their declaration. “Because of the inadequacies inherent to the review process, hundreds of questions critical to public safety and environmental impacts remain unanswered.”

The declaration continues: “We have serious concerns that the current NEB panel is neither independent from the oil industry proponents nor ready or able to assess the ‘public interest’ of British Columbians. It is no longer a credible process from either a scientific evidentiary basis, nor from a public policy and public interest perspective.”

 “We know that our concerns are shared by communities throughout the province,” says Burnaby Mayor Derek Corrigan. “This flawed hearing process disallows review of aspects of the proposal that could cause the most significant damage. It is critical for this project — and for all projects that can harm communities and the environment — that we have federal review processes that are rigorous and transparent.”

"The City of Victoria is concerned about the impact of increased tanker traffic on our ecology and our economy,” says Victoria Mayor Lisa Helps. “We're happy to stand with other municipalities to request a fair and rigorous process to ensure that both are safeguarded for the long term.”

Resolutions calling National Energy Board's review process of Kinder Morgan’s proposal inadequate have already been passed by the Union of British Columbia Municipalities (September 2014) and the Federation of Canadian Municipalities (March 2015).

The province of British Columbia has also taken issue with the NEB process, particularly with regard to its failure to compel Kinder Morgan to release its oil spill response plans in B.C. — while the company releases those very same plans across the border in Washington State.

Photo: Mark Klotz via Flickr

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Tensions are rising between the City of Burnaby and Kinder Morgan after company employees arrived in the Burnaby Mountain Conservation Area Tuesday with chainsaws to remove trees and brush in order to assess a proposed route for the Trans Mountain pipeline expansion.

The City of Burnaby issued a stop work order for the conservation area, saying Kinder Morgan does not have the right to do damage to property protected by city bylaws.

“I think it’s unfortunate that it has come to this,” city Mayor Derek Corrigan said in a press release, “but we can’t let Kinder Morgan cut down trees and do irreparable damage in a conservation area protected by our City’s bylaws.”

Corrigan added those bylaws are in place to protect the “rights and values” of local residents. “It’s astonishing that, as a private corporation, Kinder Morgan thinks they have the right to override our citizens’ wishes and the laws that have been put in place to reflect the value our citizens place on these sensitive, irreplaceable ecosystems.”

Lizette Parsons Bell, lead of stakeholder engagement and communications for Trans Mountain, said Kinder Morgan is conducting fieldwork and studies “to determine the feasibility of routing a two kilometre section of proposed pipeline between our Burnaby tank terminal and our Westridge marine terminal through the Burnaby Mountain.”

“What we’ve been doing is last week we started with clearing some brush to do some geophysical work and this week we started some geotechnical work,” she said.

Parsons Bell said the company hopes to route the pipeline through Burnaby Mountain using “trenchless construction,” a technique that requires drilling samples of the mountainside.

“This investigation informs our larger work of understanding the subsurface of Burnaby Mountain,” she said.

Burnaby is willing to grant Kinder Morgan access to the conservation land for “non-invasive work” according to mayor Corrigan, “but absolutely not to do what they arrived to do [Tuesday] – to cut down trees to create helicopter landing pads and sites for drilling bore holes on this protected land,” he said.

Parsons Bell said a helipad was being constructed for the delivery of equipment, but not for the landing of helicopters. “What I can categorically say to you is at no time will a helicopter land in the conservation area,” she said.

It appears that what is at issue between Kinder Morgan and Burnaby is a competing interpretation of the National Energy Board Act’s Section 73.

Section 73 states “a company may…enter into and on any Crown land without previous licence therefor, or into or on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline, and set out and ascertain such parts of the land as are necessary and proper for the pipeline.”

 

The section also allows for a company to “take and hold of and from any person any land or property necessary for the construction, maintenance and operation of its pipeline.”

According to Mayor Corrigan, Kinder Morgan is using Section 73 to justify work that may damage the local region against city bylaws.

“As we’ve said before, there is nothing in Section 73…which Kinder Morgan is aggressively asserting gives them the right to do this damage – that does, in fact, allow them to do it.”

“The work that we’re looking to do now on this two kilometre section of the proposed pipeline between the proposed terminal and the Westridge terminal on August 19, the National Energy Board confirmed that Trans Mountain – that we – had Section 73 rights to be able to do that,” Parsons Bell said.

Kai Nagata, energy and democracy director with the Dogwood Initiative said, as a municipality, Burnaby is in a difficult situation.

“The first problem, the first sticking point, for Burnaby is that Section 73 allows a company onto private land or municipal land before a project is approved,” he said.

“So building a helipad or cutting trees down – all of that can happen before a project is approved.”

Nagata criticized the National Energy Board for failing to provide a legitimate forum to assess the desirability of a proposed pipeline in the first place, pitting local communities and their elected officials against federal regulators who appear to be pushing through projects like Northern Gateway and Trans Mountain.

“There is no credible democratic forum in which to contest these projects,” Nagata said. “But in the meantime Burnaby is flexing its limited jurisdiction any way it can in order to register its opposition to this project at the level of governance.”

“It begs the question of where the province is in all of this,” Nagata said. “If the city of Burnaby can hold up a project by seven months and they can issue stop work orders and if they can be a stick in the spokes of Kinder Morgan as they have been, what could the province be doing to represent its constituents and uphold the public interest with the resources and jurisdiction available to them?”

“I think what we’re seeing is provincial leaders basically wash their hands of this whole fight and leave it up to First Nations and municipalities and individual citizens rather than asserting their responsibilities.”

Nagata said it’s unclear exactly where federal jurisdiction ends and where First Nations or local jurisdiction begins.

“We applaud Burnaby for pushing the envelope and finding out what the limits of their jurisdiction are and setting and example for other municipalities and local governments in opposing this project,” he said.

Greg McDade, legal counsel for the city said Kinder Morgan has overstepped what is allowable under local laws.

“Kinder Morgan has not only damaged the Conservation Area in contravention of the law, they have also attempted to interfere with traffic on public roads and to obstruct park staff in their duties,“ he said.

“The actions of the company are unprecedented, and they appear to believe they can act as if the rule of law doesn’t apply to them.”

He added the city will seek a court injunction to uphold its laws and protect its parkland. The city also plans to ensure “ongoing protection” of the conservation area.

Burnaby officially opposes the Trans Mountain pipeline expansion which will triple the amount of oil stored on Burnaby Mountain and increase the movement of oil through residential areas. The expansion would also increase the number of tankers traversing the Burrard Inlet to 400 supertankers a year.

Image Credit: Playground of the Gods on Burnaby Mountain. Kyle Pearce via Flickr.

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A lawyer representing the City of Burnaby says the National Energy Board (NEB) has turned its review of Kinder Morgan’s Trans Mountain pipeline into a “mere paperwork exercise” by cutting all cross-examination from the process.

“We were expecting that there would be public hearings and cross-examination of the evidence,” Gregory McDade said at a City of Burnaby information session last week. “There are no hearings … There will be no public examination of Kinder Morgan’s evidence whatsoever.”

In a YouTube video from the information session, McDade deconstructs the NEB’s April 2nd “hearing order,” noting that the only way for the City of Burnaby to raise concerns is now by submitting written “information requests.” This applies to all intervenors, including the Province of B.C. and the Department of Fisheries and Oceans.

“They call it a hearing order, but it should be called a ‘no hearing’ order,” McDade quipped.

“What we have here is a mere paperwork exercise. It is not a hearing and it is not public. It is not independent. All three panelists on the National Energy Board are from the oil and gas industry.”

Kinder Morgan’s Trans Mountain proposal would triple the amount of oil the company ships to Burnaby and increase the number of oil tankers travelling through Vancouver Harbour and the Gulf Islands seven-fold.

McDade said he’d planned on calling citizens of affected Burnaby neighbourhoods to testify, but now that won’t be possible.

“Our chances to represent your voices and your questions are no longer there,” he told Burnaby residents at the information session. “It’s going to have to go through information requests.”

On Saturday, hundreds of citizens turned out for a rally against the Kinder Morgan pipeline in Burnaby. Photo: Jennifer Castro via Flickr.

The only true oral hearing segment of the process is for the presentation, and questioning of, aboriginal traditional evidence. The NEB calls the final summary arguments "oral hearings," but they are near the end of the process and no new evidence can be presented at that time.

Karen Campbell, a staff lawyer for Ecojustice, told DeSmog Canada the information request process is no substitute for cross-examination.

“A virtual exchange of documents online, which is what this process primarily is, will not allow intervenors to really get to the bottom of the issues around this proposal," Campbell said. “Given how utterly contentious this project is, providing an opportunity for oral cross-examination is a critical piece of the puzzle.”

"Radical change" to process

During the Enbridge Northern Gateway pipeline hearings, there were more than 90 days of cross-examination. Chris Tollefson spent 26 hours cross-examining Enbridge witnesses as legal counsel for Nature Canada and BC Nature — groups he’s also representing during the Kinder Morgan review.

“It’s a radical change. It’s a fundamental change,” Tollefson told DeSmog Canada about the Trans Mountain review. “I’m not sure what’s left of the hearing process to the Trans Mountain hearing. The exchange of the written questions and answers is the prelude to the main event, but now there’s no main event.”

He added: “In any process where you’re trying to get at the truth, trying to test the evidence, it’s absolutely essential that you be able to pose questions to live witnesses who are under oath and who are required to answer the questions.”

Cross-examination crucial during Enbridge Northern Gateway hearings

Tollefson said that during the Enbridge hearings, cross-examination highlighted some of the most contentious issues, which were ultimately used to challenge the panel’s ruling in the federal court of appeal. He suspects the panel reviewing Kinder Morgan’s Trans Mountain proposal will be called upon to revisit this decision.

“If they don’t, the concern is that the evidence that they’re going to be relying on to make their recommendation will have not have been properly tested,” he said. “I think it cuts both ways, because not only is the proponent’s evidence not being put to the test, but neither is the evidence of any other party. The panel, in my view, is going to be hampered in doing its job.”

Tollefson said in a process restricted to written answers, it’s very easy to avoid directly and completely answering questions.

Timeline condensed by federal government

The Trans Mountain review has been condensed after the federal government’s 2012 budget bill overhauled environmental assessments and put a new 18-month timeline on reviews conducted by the National Energy Board.

“It has been put under a completely unrealistic timeline,” Tollefson said.

Burnaby Mayor Derek Corrigan has said he would be willing to stand in front of a bulldozer to stop Kinder Morgan’s project from going ahead.

“I’m prepared to fight this up until the bitter end,” he told Global News. “I’m incensed over the way we’ve been treated.”

On Saturday, hundreds of citizens rallied against the project in Burnaby, B.C.’s third largest city and the site of Kinder Morgan’s oil storage tanks and at least two major Kinder Morgan oil spills.

Community information sessions on the project have turned into rallying cries, with city officials frustrated with the NEB process.

“What we really need to do is let the government know that no public hearings is not an acceptable approach to this matter,” McDade said at last week’s information session.

Photo: Caffeinehit via Flickr

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