Backgrounder: Conditions

Trans Mountain Expansion Project

1. What are conditions?

Conditions are legal requirements that a company must meet to be allowed to construct and operate a project. Conditions are project-specific and are designed to protect the public and the environment by reducing possible risks identified during the application process.

Conditions may include requirements pertaining to project engineering and safety; emergency preparedness; environmental protection; rights and interests of people and communities; and the company’s financial responsibilities.

Conditions may require a company to submit documentation such as:

  • results of additional environmental and socio-economic assessments, species-specific studies, or traditional land use investigations;
  • engineering design details, and supporting assessments or information;
  • environmental protection plans;
  • mitigation and monitoring documentation;
  • construction schedules and progress reports; and
  • employee training programs and manuals.

Companies must submit ongoing documentation or filings with the NEB to demonstrate that they have met each condition. The NEB evaluates this information against the specific requirements that must be met for each condition. It follows up with the company if more information is needed.

2. What sort of conditions are attached to the recommendation?

Conditions include regulatory and/or overarching requirements as well as requirements pertaining to project engineering and safety; emergency preparedness and response; environmental protection; people, communities and lands; economics and financial responsibility; and project-related marine shipping. See Chapter 1 of the Report for a table which illustrates that conditions sometimes apply to multiple disciplines, and require fulfillment at the appropriate stage of the regulatory lifecycle.

Specific topics addressed include:

Regulatory and/or overarching 9
Engineering and Safety 53
Environment 49
  • including Air Emissions and Greenhouse Gasses
9
Socio-economic 35
Emergency management 15
Project-related marine shipping 6
Economics, finance and Markets 2

3. Can the applicant refuse to implement the Panel's conditions?

If the project is approved, the company must comply with all conditions as set out in the certificates and associated regulatory instruments. The NEB is responsible for verifying and enforcing compliance with all of the conditions. The company can't modify any conditions without prior approval from the NEB and can't proceed until all relevant conditions for the proposed work have been met. Non-compliance can result in assessment of administrative monetary penalties or suspension of further activities.

4. How are the conditions enforced?

The NEB is responsible for verifying that the company complies with all the conditions.

Only when the NEB is satisfied that the information the company files meets the requirements of a specific condition will the company be authorized to proceed with activities associated with that condition.

If conditions are not met, a company may not be able to begin various stages of construction or operation and they may also be assessed administrative monetary penalties.

5. How did the Panel determine the conditions attached to this project?

Conditions are project-specific. The Hearing Panel, supported by expert professional staff, sets them during the application process to reduce risks and ensure safety and environmental protection during the construction and operation of a company’s project. Conditions are based on the Board’s analysis of the evidence on the record, including the views of Indigenous Groups, municipalities and all participants.

6. Given that the Panel was required to set out conditions for this project as part of its reporting, doesn't that mean that they had to recommend its approval?

No, Section 52 of the National Energy Board Act requires the panel to include conditions in its final report, regardless of its recommendation.

7. Can the conditions attached to the final report be modified by the government?

According to the NEB Act, the Board sets out all the terms and conditions to which the certificate would be subject if GIC directs the Board to issue the certificate.

The federal government can, by order, refer any of the terms and conditions outlined in the report back to the NEB for reconsideration.

The NEB would then make a decision on whether to make a change to the conditions.

8. Why are there only 157 draft conditions, when Gateway had 209?

Every project and application is unique, and reviews are done independently of other assessments.

There are some conditions that are standard, and are attached to most recommendations or decisions. There are other conditions that are unique to the project, based on the project’s design and its physical, environmental and social setting. The conditions for each project are developed as a result of the NEB’s exhaustive scientific and technical examination of all the evidence.

Also, the actual numbers of conditions are not directly comparable from project to project, as the conditions may be applied in different ways to multiple certificates or instruments, as is appropriate to the project.

9. Do the conditions include a deadline for building the pipeline?

Certificates of Public Convenience and Necessity usually include a Sunset Clause. In the case of the Trans Mountain Project, the sunset clause states that “Unless the NEB otherwise directs prior to 30 September 2021, this [certificate/order] will expire on 30 September 2021, unless construction of the Project has commenced by that date.”

10. Do all the conditions have to be met before the pipeline is built?

Some conditions apply throughout the lifecycle of the project and may have no specific filing requirement; others will require the company to file information on a specific timeline. See Table 1 which illustrates that conditions would require fulfillment at the appropriate stage of the regulatory lifecycle.

Table 1: Conditions by subject matter and regulatory lifecycle stage
(also found in Chapter 1 of the report)
  Over-arching Prior to construction Prior to operation During operation
Regulatory Oversight 1, 2, 5 6, 10, 61, 62 6, 10, 62, 106 6, 139
Economics and Financial Responsibility   57 121 121
Emergency Preparedness and Response   89, 90 117, 118, 119, 120, 123, 124, 125, 126, 127, 136, 138 120, 145, 153
Environment General 3 7, 60, 72, 78, 81   145, 151
Air quality and greenhouse gases   52, 53, 54, 55, 79, 85 137 140, 142
Water quality   35, 39, 47, 71, 87 113, 130 151, 154
Soil, vegetation and wetlands   40, 41, 42, 45, 46, 47, 71, 76, 92   151, 154, 155, 156, 157
Wildlife and wildlife habitat   36, 37, 38, 44, 47, 56, 71, 92 128 37, 128, 149, 150, 151, 154
Fish and fish habitat   43, 47, 71, 75, 92 75, 108, 109, 110 108, 109, 110, 151, 154
Marine mammals   92 132 151
People, communities and lands Effects on communities (including Aboriginal)   7, 13, 14, 48, 49, 59, 60, 72, 73, 74, 78, 80, 81, 82, 86, 93, 94, 95, 99, 100, 102, 103 49, 94, 99, 131 94, 99, 141, 145
Specific effects on Aboriginal interests   7, 39, 77, 96, 97, 98 96 146
Training, skills and employment   11, 12, 58 58, 107  
Lands and routing   7, 60    
Engineering and Safety Project 4 9, 50, 51, 63, 64, 66, 69, 88 63, 66, 105, 111, 112, 114, 116 147, 148
Line 1 (existing pipeline and reactivated segments)   18, 19 115, 135 152
Line 2 (new pipeline & segments transferred from Line 1)   15, 16, 17, 65, 67, 68, 70 104, 115, 122, 135 143
Pump Stations   8, 30, 31, 101 30  
Multidisciplinary Westridge Delivery Pipelines and Burnaby Mountain Tunnel   15, 16, 20, 21, 26, 27, 28, 29, 72, 85, 86, 87 104, 125 143
Westridge Marine Terminal   8, 21, 30, 33, 34, 35, 52, 53, 80, 81, 82, 83, 84, 97, 101 30, 109, 118, 119, 123, 126, 127, 129, 130, 136, 138 109, 141
Edmonton, Sumas and Burnaby Terminals   8, 22, 23, 24, 25, 30, 32, 54, 78, 79, 80, 101 30, 118, 123, 125, 127, 129, 130, 136, 137, 138 141, 153
Watercourses (freshwater)   43, 47, 48, 65, 67, 71, 72, 74, 75, 87, 92, 94 75, 94, 108, 110, 113 94, 108, 110, 151, 154
Project-related marine shipping   91 131, 132, 133, 134 134, 144
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