Pipelines – Detailed Route Hearings
On December 16, 2013, Trans Mountain Pipeline ULC (“Trans Mountain”) filed an application with the National Energy Board (“NEB”) under section 52 of the National Energy Board Act (“NEB Act”) for a certificate of public convenience and necessity (“Certificate”) authorizing the construction and operation of the Trans Mountain Expansion Project (“TMEP”).
The TMEP includes twinning the existing 1,147-kilometer-long Trans Mountain Pipeline (“TMPL”) system in Alberta and British Columbia with approximately 981 kilometers of new buried pipeline; new and modified facilities, such as pump stations and additional tanker loading facilities at the Westridge Marine Terminal in Burnaby; and reactivating 193 kilometers of the existing pipeline between Edmonton and Burnaby. Trans Mountain requested approval of a 150-meter-wide corridor for the TMEP pipeline’s general route.
The TMEP was approved by Order in Council (“OIC”) P.C. 2016-1069 in November 2016. The NEB issued Certificate OC-064 and began work on various regulatory processes, including the 2017/18 detailed route approval process. Certificate OC-064 included approval of a corridor through Chilliwack that followed BC Hydro transmission lines for some distance (“Original Corridor”). There was later approval of a realignment (the “Chilliwack Realignment”) to vary the pipeline corridor for a short section, relocating the TMEP away from the BC Hydro lines and to within the existing TMPL right-of-way (“RoW”). The realignment was outside the Original Corridor for approximately 1.8 kilometers.
Following an appeal, a second public hearing process, an NEB Reconsideration Report, and a further approval of the TMEP by an OIC, the NEB issued Certificate OC-065 (the hearings which were held which led to Certificate OC-064 and OC-065 are referred to herein as “Certificate Hearings”). In July 2019, following a public comment process, the NEB set out how it would resume the TMEP detailed route approval process. The NEB directed Trans Mountain to file its Plan Profile and Book of Reference (“PPBoR”) for the entire TMEP route. Trans Mountain served landowners along the length of the TMEP with a notice that the detailed route approval process was underway and placed notices in local publications. The notices indicated that landowners and Indigenous peoples with a continued or new objection to the proposed detailed route or to the methods or timing of construction were required to file a statement of opposition (“SOO”).
On August 28, 2019, the Canadian Energy Regulator Act (“CER Act”) came into force, repealing the NEB Act. As a result, the CER considered approval of the PPBoR under the provisions of the CER Act.
Detailed Route Hearing MH-010-2020
On 13 and 16 September 2019, Chilliwack filed SOOs seeking to resume its 2017/2018 detailed route hearing (MH-020-2018). On 23 September 2019, the CER received an SOO from the S’ólh Téméxw Stewardship Alliance (“STSA”) opposing the proposed detailed route and the methods and timing of construction throughout various segments of the TMEP, which was later withdrawn.
This detailed route hearing’s geographical focus overlapped with that of Detailed Route Hearings MH-026-2020, MH-013-2020, MH-015-2020, and MH-026-2020. These hearings and MH-010-2020 were collectively referred to as the “Chilliwack Hearings”. However, each hearing considered its own evidentiary record and unique issues and applied to specific tracts of land. Tract 2307 in Segment 6.3 was the section at issue in this proceeding (the “Lands”).
Overview of the Proposed Route on the Lands
The following figure depicts Trans Mountain’s proposed detailed route Chilliwack’s alternate routes, the District Parent Advisory Council’s (“DPAC’s”) preferred route, and Watson Elementary School:
Figure 3 – Trans Mountain’s proposed route, Chilliwack’s alternate routes, DPAC’s preferred route, and Watson Elementary School (C07675-2)
Is Trans Mountain’s Proposed Route the Best Possible Detailed Route?
(a) Has Trans Mountain adequately addressed concerns with the proximity of the proposed route to Watson Elementary School?
Trans Mountain’s proposed route crosses Watson Elementary School. In determining whether Trans Mountain adequately addressed concerns with the proximity of the proposed route to Watson Elementary School, the CER considered submissions from Chilliwack School District #331 (the “School District”), DPAC, and Trans Mountain.
The CER determined that Trans Mountain had adequately engaged with the School District. The CER emphasized that Trans Mountain, in response to engagements with school representatives, created the School Guidelines to supplement school emergency planning and that Trans Mountain has committed to providing it every two years and to make it publicly available. Further, the CER noted Trans Mountain’s commitment to regularly meet with school representatives to review emergency protocols, pipeline safety and to keep them informed. The CER agreed that the safety of school children and others is the primary concern. It determined that Trans Mountain’s proposed mitigation, including scheduling construction activities on certain lands between the months of July and August to avoid impacts on schools, restricting access to the construction zone by fencing the entire construction area, and more, addresses potential safety concerns associated with the proposed route through the Watson Elementary School property.
In Detailed Route Hearing MH-026-2020, the WaterWealth Project (“WaterWealth”) proposed an alternate route. DPAC supported this alternative. This proposed alternative did not intersect with schools, residential areas, wells, significant salmon habitat enhancement areas and has half as many private wells within the 150-meter inventory distance required by project conditions. The CER found that this proposed alternate route would result in land fragmentation which is inconsistent with the approved routing criteria. The CER concluded that adding a second RoW would increase overall impacts. Further, the CER found that DPAC’s preferred route would involve construction and engineering challenges that are insurmountable.
With regard to the Sardis-Vedder Aquifer, the CER noted that the Chilliwack Realignment hearing considered in detail the risk that the Approved Corridor (and thus of Trans Mountain’s proposed route) posed to the Aquifer and Chilliwack’s water wells. The Realignment Report concluded that the risk to Chilliwack’s wells is minimal, but not zero. The CER agreed. It rejected the suggestion that Trans Mountain install a trench liner, finding that it would likely introduce pipeline integrity challenges and that the TMEP leak detection system made a trench liner unnecessary.
The CER found that Trans Mountain’s flexible application of its routing criteria was appropriate in this case. It found that Trans Mountain had the onus of proving on a balance of probabilities that its proposed route is the best possible detailed route and that its proposed methods and timing of construction are the most appropriate. The CER examined alternate routes and found that they were inferior to Trans Mountain’s proposed route. It found that Trans Mountain’s proposed route is the best possible detailed route.
Are Trans Mountain’s Proposed Methods of Constructing the Pipeline the Most Appropriate?
Issues arose regarding Trans Mountain’s proposal to construct the TMEP with a conventional open-trench construction methodology. SOO filers submitted that this would create unnecessary risk to students, staff and parents.
Trans Mountain had already, as part of the Chilliwack Realignment hearing, proposed mitigation measures, including scheduling construction activities between the months of July and August and restricting access to the construction zone by using fencing around the entire construction area. It would further implement traffic management plans and measures relating to project vehicles and equipment. Further, in the case that the construction could not be completed in July/August, Trans Mountain committed to further secure and monitor the construction site to ensure that it cannot be accessed by students.
The CER was satisfied that the proposed construction method is the most appropriate and noted its expectation of Trans Mountain to implement the measures and mitigation established through the Certificate Hearings and this detailed route hearing to address potential impacts during construction.
Is Trans Mountain’s Proposed Timing of Constructing the Pipeline the Most Appropriate?
Trans Mountain proposed to construct the pipeline between July and August 2021 and to have the trench backfilled prior to school returning in September 2021.
The CER noted that Trans Mountain’s commitments are significant and may further reduce potential impacts. It emphasized its expectation that Trans Mountain stands by these commitments before, during, and after construction. The CER noted DPAC’s concern that starting and deferring construction until summer 2022 would result in an inactive construction site for an extended period of time, posing an inconvenience on Watson Elementary School and its students for the entire school year. Trans Mountain is expected to continue its engagement with the School District prior to construction in order to discuss specific concerns and potential alternative mitigation measures for this contingency scenario.
The CER decided that Trans Mountain’s proposed route is the best possible detailed route on the Lands, and the proposed methods and timing of constructing the pipeline are the most appropriate, subject to the commitments made by Trans Mountain and ongoing compliance with the Certificate OC-065 conditions.