The CER considered Maritimes & Northeast Pipeline Management Ltd.’s (“M&NP”)’s application to abandon the deep panuke custody transfer station filed with the National Energy Board (“NEB”) on August 22, 2019 (the “Application”).
The Application was filed before the coming into force of the Canadian Energy Regulator Act (“CER Act”). Pursuant to section 36 of the transitional provisions of the CER Act, the Application was considered by the CER in accordance with the National Energy Board Act (“NEB Act”).
The Application described activities related to the abandonment of the Deep Panuke Custody Transfer Station (“Station”). The CER issued Order ZO-001-2020 (“Order”), the effect of which is to grant M&NP leave to abandon the Station.
Project Overview and the Process
M&NP’s Application sought leave to abandon the Station (“Project”). M&NP indicated it would abandon the Project by removing all related surface equipment and below-ground infrastructure at the station site. The existing gravel pad at the station site will be left in place, and the area will be maintained as an access site for the M&NP mainline pipeline. The Project is located on approximately 0.2 ha of land, and M&NP abandonment activities would be confined to the Station footprint and existing M&NP right-of-way.
Under the NEB Act, the CER must hold a public hearing to consider an application for leave to abandon a pipeline. The CER issued Notice of Abandonment Hearing MHW-001-2020 for the Project (“Notice”) on 7 January 2020, which set out how the CER would consider the Application.
Assessment of the Application
The CER found that the abandonment activities for the Station, as proposed by M&NP, are consistent with the legislative requirements related to the abandonment of piping, equipment, and related facilities at stations.
The CER reminded M&NP that it must conduct all abandonment activities in compliance with the National Energy Board Onshore Pipeline Regulations (“OPR”) and Canadian Standards Association (CSA) Standard CSA Z662-19.
In response to M&NP’s statement that releases will be immediately reported to the Nova Scotia Environment Emergency Line or the Canadian Coast Guard, the CER stated that notifications of releases are required by various federal and provincial regulations. There is no notification-sharing agreement between the CER and the Nova Scotia Department of Environment or the Canadian Coast Guard. Therefore the CER was of the view that a report to those agencies will not satisfy the requirement to report to the CER.
The CER reminded M&NP of the requirement under the CER Act to report incidents to the CER in accordance to the NEB Event Reporting Guidelines.
Economic and Financial Matters
The CER accepted that Encana will be funding the full cost of the Project and, based on the submissions provided by M&NP, agreed that there will be no impact to M&NP’s toll as a result of the Project. Further, the CER was of the view that M&NP’s Abandonment Trust could be drawn upon in the case of unforeseen liabilities or other obligations created by or arising from the Project. In light of the foregoing, the CER was satisfied that the Project will have no impact on MN&P’s tolls and that M&NP can finance the Project abandonment work.
The CER noted that improving the future accuracy of the CER’s Abandonment Cost Estimates is an ongoing process that benefits from the accumulation of data. Therefore, the CER imposed a condition which requires M&NP to provide actual cost data broken down by abandonment activity.
Lands, Consultation and Socio-economic Matters
The CER found that the Project would have negligible environmental or socio-economic effects on Indigenous interests due to its small scale and localized nature on previously disturbed privately held industrial land, with no associated potential for traditional use activities to be affected.
The CER was satisfied that the socio-economic and lands impacts of the Project are not likely to be significant due to the small scale, short duration, and location of the Project within the original Station footprint with access by private road and the application of standard mitigation measures.
The CER noted the concerns raised by Maw-lukutijik Saqmaq regarding potential disturbance of heritage resources during the completion of physical abandonment activities. It noted that M&NP received the necessary heritage and archaeological resources clearance from the province prior to the original Station construction in 2010 and that no archaeological or heritage resources were found or disturbed at the site at that time.
The CER found M&NP’s view, namely that no new on-the-ground archaeological testing would be carried out as a result of this Project as these measures had taken place already before the original construction of the Station and no heritage resources were found at that time, to be reasonable.
To ensure that mitigation measures to protect previously unidentified heritage resources are adequately implemented, the CER imposed a condition (“Condition 3”) requiring M&NP to file its Environmental Protection Plan (“EPP”) with the CER and to serve a copy on Maw-lukutijik Saqmaq. The EPP must include a contingency plan to be implemented if previously unidentified heritage resources are encountered, including measures implemented in accordance with the Nova Scotia Heritage Property Act.
The CER found the likelihood of any potential negative impacts of a socio-economic nature or related to the lands from the Project to be remote, and in any event that it would be limited in extent, short term, and reversible, and therefore not likely to be significant.
The CER noted the concerns raised by Maw-lukutijik Saqmaq regarding leaving the Project site as graveled following the completion of the physical abandonment activities. However, the CER noted that M&NP owns the Project lands in fee simple within the boundaries of an industrial park and is planning to retain ownership of the land area for ongoing operational purposes and potential future uses.
Regarding the concerns raised by the Maw-lukutijik Saqmaq about the wetland located adjacent to the southwest corner of the Project site, the CER reviewed information in the Environmental Screening Final Report (“ESFR”) submitted by M&NP in its application to the NEB to construct the Project in 2009, as well as the 2012 Post-Construction Monitoring Report filed with the NEB by Encana for the Deep Panuke Project in 2012. The ESFR indicated that the Project site is located within lands formerly owned by Encana and that water approvals were issued by Nova Scotia E
nvironment to Encana for wetland alterations during construction of the Deep Panuke Project, including the Station site. As a condition of those approvals, Encana committed to restoring and compensating wetland loss to ensure no net loss of wetland function. Encana’s Post-Construction Monitoring Report (“PCMR”) confirmed that a small area of permanent alteration occurred in the wetland of concern to the Maw-lukutijik Saqmaq. In its PCMR, Encana did not identify any outstanding issues regarding wetlands but did confirm that a report would be prepared and submitted to Nova Scotia Environment and Environment Canada, summarizing the results of the wetland monitoring program.
Based on the information contained in the reports noted above, as well as the information provided by M&NP in its Application and related filings as part of this proceeding, the CER was of the view that if there are still any outstanding issues relating to this wetland, the responsibility for them lies with Encana and Nova Scotia Environment, and not M&NP. The CER was also satisfied that any historical residual effects of constructing the Project site on the wetland located adjacent to the southwest corner of the site were addressed by Encana as part of the Deep Panuke Project.
The CER again noted that, while M&NP indicated it had prepared an EPP for the Project, a copy of the EPP was not included in its Application. To ensure that the mitigation measures to protect the wetland and other environmental features on and adjacent to the Project site are adequately implemented, the CER again made note of Condition 3, which requires M&NP to file its EPP with the CER and to serve a copy on Maw-lukutijik Saqmaq.
Considering the nature and scope of the Project, M&NP’s proposed mitigation measures, and with the implementation of Condition 3, the CER was of the view that any potential adverse environmental effects arising from the Project would not be significant, as they would be of limited geographic extent, short term, and reversible.
The CER granted M&NP leave to abandon the Project.