On February 22, 2019, the National Energy Board (NEB) delivered its Reconsideration report to the Government of Canada, with an overall recommendation that the Trans Mountain Expansion Project is in the Canadian public interest and should be approved.

The Project will be subject to 156 conditions. The conditions are enforced by the NEB and demonstrate the rigour and detail that will go into every stage of the Project to mitigate risks, respect the rights of those directly affected and operate safely, should the Project be approved. In addition, Trans Mountain has made hundreds of commitments to address concerns raised by the public, local and provincial governments and Indigenous communities that encompass a wide range of areas. Trans Mountain is required by the NEB to implement each and every one of these commitments.

The NEB has also made 16 new recommendations to the Government of Canada. The recommendations relate to matters that fall outside of the NEB’s regulatory mandate, but within the authority of the Government of Canada.

For the Reconsideration hearing, the NEB was directed by Governor in Council to reconsider all conditions set out in their 2016 Report that are relevant to addressing the issues specified by paragraph 770 of the Federal Court of Appeal decision of August 30, 2018, including Conditions 91, 131 to 134, 144, and 151. As a result of the hearing, the NEB has decided to:

• replace (amend) Conditions 2, 91, 132, 133, 134, and 144;

• turn Condition 131 into a recommendation to the federal government which has the necessary authority to address such matters; and

• confirm Condition 151.

The amendments to the Conditions are outlined in bold below and the NEB’s explanation for the changes are in italics:

Condition 2

Compliance with commitments:

Without limiting Conditions 3, 4 and 6, Trans Mountain must implement all of the commitments it made in its Project application or to which it otherwise committed on the record of the OH-001-2014 proceeding, as well as the MH-052-2018 proceeding.

NOTE: OH-001-2014 refers to the prior proceeding and MH-052-2018 refers to the Reconsideration proceeding.

Condition 91

Plan for marine spill prevention and response commitments:

Trans Mountain must file with the NEB, within 6 months from the issuance date of the Certificate, a plan describing how it will ensure that it will meet the requirements of Condition 133 regarding marine spill prevention and response. The plan must be prepared in consultation with Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority, Vancouver Fraser Port Authority, British Columbia Coast Pilots, Western Canada Marine Response Corporation, Fisheries and Oceans Canada and the Province of British Columbia, and must identify any issues or concerns raised and how Trans Mountain has addressed or responded to them.

Trans Mountain must provide the plan to the above-mentioned parties at the same time as it is filed with the NEB.

On January 10, 2019, the Board  issued draft amendments to conditions and recommendations to parties for comment in their written argument-in-chief. Some comments said that Condition 91 did not clearly set out the timing of compliance requirements. The condition was changed to address these comments.

Condition 131

Marine Public Outreach Program:

Has been converted from a condition into a recommendation.

In Certificate OC-064, the Board imposed Condition 131 requiring Trans Mountain to develop a public outreach program prior to Project operations in order to ensure that the program is designed in consultation with the PPA and implemented in a manner that is appropriate to its intended audience. The Board has decided to revise Condition 131 into a recommendation to the Governor in Council (GIC) which has the necessary authority to address such matters. As such, the Board proposes Recommendation 12 that encourages GIC, in conjunction with the PPA and Transport Canada, to continue engagement and awareness activities targeting coastal Indigenous communities, recreational boaters, fishing vessel operators, and operators of small vessels with respect to safety of navigation and prevention of collisions with larger vessels. While some intervenors argued that the Board has authority to impose and assess compliance with conditions outside its regulatory authority, no specific authority was provided by intervenors to support that the Board can enforce marine shipping conditions not linked to WMT*.

The Board acknowledges the concerns expressed by several intervenors regarding the proposed change of Condition 131 to a recommendation, including those which submitted that Trans Mountain would no longer be required to conduct marine safety engagement activities. The Board notes that in the OH-001-2014 hearing Trans Mountain committed to initiate a public outreach program prior to Project operations phase to mitigate the potential effects of disruption of subsistence hunting and commercial fishing activities due to increased Project-related marine vessel traffic. As such, the Board expects Trans Mountain to continue to collaborate and work in partnership with active marine authorities and organization, and coastal communities to provide information about Project-related marine vessels and associated marine concerns. The Board further expects the Trans Mountain will update its status on this commitment as part of Condition 6 (Commitments Tracking Table).

*The Federal Court of Appeal at para. 456 found that while the Board lacked authority to regulate marine shipping, GIC was not so limited. The Board is of the view that enforcement and regulation are tied together and therefore has provided Recommendation 2 to the GIC.

Condition 132

Marine Mammal Protection Program:

Trans Mountain must file with the NEB, at least 3 months prior to commencing operations, a Marine Mammal Protection Program that focuses on mitigating effects from the Project and associated cumulative effects, and on fulfilling Trans Mountain’s commitments as a terminal operator with regard to Project-related marine shipping. The program must include:

a) the goals and objectives of the program, including a discussion on how they align with the objectives of applicable Fisheries and Oceans marine mammal Recovery Strategies and Action Plans;

b) a summary of the issues related to marine mammals from the Project and from Project-related marine vessels;

c) a summary of the initiatives that Trans Mountain has supported or undertaken to-date, including the goals of each initiative and how they relate to the goals and objectives of the program;

d) a discussion of the outcomes or progress updates of the initiatives identified in c), and how these outcomes have met or are contributing to the objectives of the program; [previous e) and f) deleted]

e) any other initiatives that Trans Mountain intends to undertake or support in the future that are relevant to the program; and

f) a description of how Trans Mountain has taken available and applicable Indigenous traditional land use and traditional ecological knowledge into consideration in developing the program, including demonstration that those Indigenous persons and groups that provided Indigenous traditional land use information and traditional ecological knowledge, as reported during the OH-001-2014 proceeding, MH-05-2018 Reconsideration proceeding and/or pursuant to Condition 97, had the opportunity to review and comment on the information.

The Board has kept its previous Condition 132, but has made a few amendments to more accurately reflect what Trans Mountain can control given that it does not own or operate Project-related marine vessels, to reflect the fact that this MH-052-2018 hearing has explored the range of potential mitigations for marine vessels, and to be consistent with the recommendations to government below. Therefore, Condition 132 encompasses mitigations to reduce or offset the contribution to cumulative effects from the Project (e.g., construction at watercourse crossings and at the Westridge Marine Terminal), and, although the Marine Mammal Protection Program does not constitute immediate mitigation for Project-related marine shipping effects, the Board has included reference to shipping in Condition 132 given Trans Mountain’s commitments. The Board also has taken into account that Trans Mountain said it will commence a process to solicit and obtain feedback and comments from Indigenous groups on a draft version of the Marine Mammal Protection Program no later than 18 months before commencement of Project operations.

Condition 133

Confirmation of marine spill prevention and response commitments:

Trans Mountain must file with the NEB, at least 3 months prior to loading the first tanker at the Westridge Marine Terminal with oil transported by the Project, confirmation, signed by an officer of the company, that:

a) Trans Mountain has included in its Vessel Acceptance Standard and Westridge Marine Terminal Regulations and Operations Guide a requirement for tankers nominated to load at the Westridge Marine Terminal to have a suitable arrangement for the proposed enhanced tug escort between the Westridge Marine Terminal and Bouy J prior to departure. The tug escort should be suitable for foreseeable meteorological and ocean conditions and be based on tanker and cargo size; and

b) an enhanced marine oil spill response regime is in place that is capable of:

i) delivering 20,000 tonnes of capacity within 36 hours of notification, with dedicated resources staged within the study area; and

ii) initiating a response within 2 hours for spills in Vancouver Harbour, and within 6 hours for the remainder of the Salish Sea shipping route to the 12-nautical-mile territorial sea limit.

On January 10, 2019, the Board issued draft amendments to conditions and recommendations to parties for comment in their written argument-in-chief. Some comments said that Condition 133 did not adequately address marine spill response times. The condition was changed to address these comments. Condition 133 also confirms Trans Mountain’s marine spill prevention and response commitments.

Condition 134

Updated Vessel Acceptance Standard and Westridge Marine Terminal Regulations and Operations Guide:

Trans Mountain must file with the NEB, at least 3 months prior to loading the first tanker at the Westridge Marine Terminal with oil transported by the Project, and thereafter on or before 31 January of each of the first five years after commencing operations, an updated Vessel Acceptance Standard and Westridge Marine Terminal Regulations and Operations Guide, and a summary of any revisions made to each.

Note: In its Recommendation report the NEB did not provide an explanation for the amendments.

Condition 144

Ongoing confirmation of marine spill prevention and response commitments:

Trans Mountain must file with the NEB, on or before 31 January of each year after commencing operations, confirmation, signed by an officer of the company, that it is continuing to meet the requirements of Condition 133 regarding Trans Mountain’s marine spill prevention and response commitments.

Trans Mountain must provide each filing to Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority, Vancouver Fraser Port Authority, British Columbia Coast Pilots, Western Canada Marine Response Corporation, Fisheries and Oceans Canada and the Province of British Columbia at the same time as it is filed with the NEB. If a particular party mentioned above requests that it not be provided an annual filing, Trans Mountain may cease providing it to that party.

Note: In its Recommendation report the NEB did not provide an explanation for the amendments.

Condition 151

Post-construction environmental monitoring reports:

Trans Mountain must file with the NEB, on or before 31 January following the first, third, and fifth complete growing seasons after completing final clean-up, a post-construction environmental monitoring report for the Project that must include:

a) a description of the valued components or issues that were assessed or monitored;

b) measurable goals for each valued component or issue;

c) monitoring methods for each valued component or issue, results of the monitoring, and a comparison to the defined measurable goals;

d) corrective actions taken, their observed success, and their current status;

e) identification on a map or diagram of the locations where corrective actions were taken;

f) any further corrective actions planned and a schedule for monitoring and reporting; and

g) a summary of its consultations with appropriate government authorities and any potentially affected Indigenous groups and affected landowners/tenants.

In the post-construction environmental monitoring report filed after the fifth full growing season after completing clean-up, Trans Mountain must include:

i) an assessment of the effectiveness of mitigative and corrective actions and how learnings have been or will be applied to Trans Mountain’s Environmental Protection Program;

ii) a detailed description of all valued components or issues for which the measurable goals have not been achieved during the duration of the post-construction monitoring program; and

iii) an evaluation of the need for any further corrective actions, measurable goals, assessments, or monitoring of valued components or issues, including a schedule for those.

All filed post-construction environmental monitoring reports must address issues related, but not limited, to: soils; weeds; watercourse crossings; riparian vegetation; wetlands; rare plants, lichens and ecological communities; municipal tree replacement; wildlife and wildlife habitat; fish and fish habitat; marine fish and fish habitat; marine mammals; marine birds; and species at risk. 

This condition is confirmed.