Kinder Morgan Trans Mountain may be in violation of a condition laid out by the National Energy Board, Canada’s federal pipeline regulator, after ordering nearly 300,000 tonnes of pipeline for the expansion project without submitting a quality management plan.

According to regulatory documents filed by the National Energy Board in September, Trans Mountain was required to file a quality management plan “at least four months prior to manufacturing any pipe and major components for the project.”

The quality management plan requires Trans Mountain to supply documentation regarding the qualifications of pipeline contractors, vendors and suppliers, quality auditing of manufactured pipe and the preservation of pipe during shipping and storage.

Yet in documents submitted to the NEB, Trans Mountain confirmed pipeline manufacturing contracts were awarded between May and July of 2017 and manufacturing of the pipeline began in October with no plan in place.

In 2012, TransCanada came under fire for failing to comply with NEB rules regarding pipeline inspections. Since 1999 the NEB has required companies to provide independent inspections of contracted pipeline manufacturers. Whistleblower Evan Vokes raised the alarm about faulty pipeline welding practices, bringing his complaint to the NEB after TransCanada refused to acknowledge his concerns.

Peter McCartney, campaigner with the Wilderness Committee, said the company’s actions are evidence of a disregard for Canada’s regulatory process.

“They think the rules don’t apply to them and yet there are 157 conditions the federal government placed on this project’s approval,” McCartney told DeSmog Canada.

The NEB has indicated it will review Trans Mountain’s potential non-compliance in an “upcoming compliance verification activity.”

In early February 2017 Trans Mountain submitted a filing to the NEB that included “incomplete process documentation” on 13 specific aspects of Condition 9, which applies to the quality management plan.

#KinderMorgan At Risk of Violating NEB Condition With Premature 300,000-Tonne Pipeline Order https://t.co/evYw3E3eaW #transmountain #bcpoli

— DeSmog Canada (@DeSmogCanada) November 3, 2017

Trans Mountain notified the NEB it would submit completed documentation to the NEB by August 15, 2017, but by September none of the requested document has been submitted.

In a response to the NEB, Trans Mountain confirmed it had procured pipe, fitting and other major components for the pipeline, prior to the completion of its quality management plan.

A spokesperson with the NEB told DeSmog Canada that an assessment of Trans Mountain’s “condition related filings is ongoing.”

“Throughout construction oversight, the NEB undertakes assessment of company documentation to ensure pipe and components meet regulations and standards,” the spokesperson said. “The company is accountable for meeting these regulations and standards.”

Trans Mountain did not respond to a written request for comment.

McCartney said these revelations add to growing concerns Trans Mountain is not interested in following rules laid out by the federal government.

Last month the NEB ordered Trans Mountain to remove unapproved anti-spawning mats a company biologist placed in B.C. and Alberta rivers along the proposed pipeline route. In an October 12 letter, the NEB told Trans Mountain the use of such installations “prior to approval of relevant conditions for commencement of construction and approval” of the pipeline was non-compliant.

Trans Mountain recently appealed to the NEB to help keep the project on schedule by expediting ongoing reviews of project conditions. The request came as the city of Burnaby, which vocally opposes the project, refused to issue construction permits to the company.

According to previous NEB filings, Trans Mountain plans to stockpile pipeline in New Westminster, Chilliwack, Hope, Merritt, Kamloops, Vavenby and Valemount.

Those piles could begin appearing as early as this month.

Kinder Morgan released an IPO in May, seeking $1.75 billion from investors. In a prospectus filed with security regulators the company warned delays in construction of the Trans Mountain pipeline posed a significant risk to the project.

“Should any number of risks arise, [Trans Mountain] may be inhibited, delayed or stopped altogether,” the document warned.

NEB Letter to Trans Mountain re Condition 9 September 2017 by DeSmog Canada on Scribd

Trans Mountain Response to NEB Letter – Condition 9 September 2017 by DeSmog Canada on Scribd

Image: Kinder Morgan Trans Mountain pipeline sign in Burnaby. Photo: Carol Linnitt | DeSmog Canada

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Kinder Morgan’s proposal to expand the Trans Mountain pipeline has failed to meet British Columbia’s standards when it comes to marine and land spill response plans, according to the province’s submission provided to the National Energy Board (NEB) Monday.

Environment Minister Mary Polak told reporters the province outlined five conditions that must be met to receive the province's support for any oil pipeline in its submission to the National Energy Board. She said two of those conditions, pertaining to marine and land spill response, have not been met.

“Today we are putting forward our final submission to the National Energy Board hearings on the Trans Mountain pipeline expansion,” Polak said.

“You will see once again our five conditions outlined. We see those as our basis for defending British Columbia’s interests in terms of environment, but also First Nations and benefits to British Columbia.”

“We have not at this time seen evidence in the NEB process that those conditions have been met,” she said.

Polak added B.C. has received encouragement from both government and industry leaders for its decision to uphold the five conditions.

Although not all levels of government have expressed support for the province’s position.

Thomson Nicola Regional District Chair John Ranta expressed disappointment the government is “turning its back” on the project which he says would benefit communities along the pipeline route.

“Billions of dollars were expected to be spent, employing thousands of people during the construction phase,” Ranta told a local radio station in Merritt. “It surprises me a project of this magnitude would be rejected by the provincial government.”

Minister Polak defended B.C.’s position, saying, “I think perhaps Mr. Ranta is forgetting the basis upon which we are providing this submission to the NEB.”

“This is about the NEB process and based on the evidence within the NEB process,” she said.

“We have seen that the company has been vocal in saying they believe they can meet our five conditions,” Polak stated, adding, “they are welcome to work towards that.”

Peter McCartney, climate campaigner with the Wilderness Committee, said his organization is “cautiously optimistic” about B.C.’s submission to the NEB. "Of course they have their conditions laid out but if you read through their submission they say if these conditions are met, they will approve the pipeline," added. 

“I think it’s a good sign that the B.C. government recognizes a spill on our coast would be disastrous,” he said. “We’ll see what Kinder Morgan comes up with, if they even do come up with a proper spill response plan in the eyes of the government.”

As DeSmog Canada first reported, Kinder Morgan refused to release full spill response plans to the B.C. government, citing safety concerns. The company released those same spill response plans in full to the public in the U.S. for segments of the Trans Mountain pipeline network that cross the B.C.-Washington border.

Beyond oil spill concerns, McCartney said B.C. has no condition to address the climate impact of pipelines. 

“Even if that oil makes it to Asian markets without spilling into the Salish Sea it’s going to spill into the atmosphere via greenhouse gas emissions.”

Adam Scott from Environmental Defence said the current regulatory system doesn’t take the risks pipelines post to Canadians and environment seriously enough.

“The National Energy Board is increasingly seen by Canadians as a rubber stamp for the oil industry,” Scott said in a statement. “The NEB for too long has only asked how to get projects built. Instead, a reformed pipeline review process must first ask if these projects are in the best interest of Canadians.”

During the federal election Prime Minister Justin Trudeau said the Liberals would overhaul the National Energy Board review process by making it more evidence-based. Trudeau said a new revamped process would be put in place and that ongoing reviews, such as for the Trans Mountain pipeline, would start fresh under a new, more robust system.

However, in November Natural Resources Jim Carr announced ongoing oil pipeline reviews will continue on under the current regime, adding that changes may retroactively apply to ongoing reviews if and when they are implemented at the National Energy Board level.

Scott said the federal government is “backtracking on its election promise” but the final decision regarding the fate of the pipeline rests with cabinet.

“Any meaningful review has to investigate if energy projects will undermine Canada’s policy goals like promises made in Paris to cut carbon pollution,” he said. “It also means listening to the best available science, such as the recent NAS study on the safety risks of diluted bitumen.”

The Tsleil-Waututh First Nation is currently engaged in a legal challenge of the National Energy Board review process. The nation argues the process has been compromised by a number of “procedural errors” and the government has failed to meet its duty to consult with First Nations.

The proposed pipeline expansion would increase the line’s capacity from 300,000 to 750,000 barrels of oil per day and could quadruple the number of oil tankers in the Burrard Inlet, from five to more than 20 each month. 

Eugene Kung, staff counsel with West Coast Environmental Law, said he is “pleased the province has recognized that this project doesn’t meet their five conditions.”

Kung is a representative for the Tsliel-Waututh First Nation in the NEB hearings and is also counsel for the Tsliel-Waututh Sacred Trust Initiative, the branch of government tasked with fighting the Trans Mountain expansion.

Kung added that beyond marine and terrestrial spill response, there are two additional conditions that have yet to be met by Kinder Morgan.

The first condition, that the project go through an environmental assessment process, has yet to be met, according to Kung.

“It’s an open question whether the NEB process as it currently stands would fulfill that first condition given how widely criticized that process has been including by the province,” Kung said.

Kung added the fifth condition which pertains to First Nations rights needs further discussion.

“Based on where the state of Canadian law on aboriginal rights is today and in particular the practical requirements for consent as set out the in Chilcoltin decision — combined with the Tsliel-Waututh and other Fist Nations well-grounded and well-founded rejection of the project — makes it difficult for a linear project like a pipeline to meet all those conditions.”

“It’s hard to imagine those conditions being met if the aboriginal law rights and title requirements do have to be met because that clearly hasn’t happened,” he said.

“I haven’t seen anything from the minister on their position on that.”

This article was updated January 11, 2016 at 4:00pm to include comments from Eugene Kung.

Image: Environment Minister Mary Polak via Flickr

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