Questions and Answers
Condition Compliance - Trans Mountain Expansion Project
- Is the project now approved or does the applicant need any further permits or licenses?
- When is the earliest date that construction could begin?
- How long does Trans Mountain have before the certificate expires? (sunset clause)
- How did the Panel determine the conditions attached to this project?
- What are conditions?
- What sort of conditions are attached to the project?
- Why does the Board need to send out Information Requests on Condition compliance?
- What information and input was considered in forming these conditions?
- How does the Board ensure compliance?
- Can the applicant refuse to implement the Panel's conditions?
- Why are there only 157 conditions, when Gateway had 209?
- Do all the conditions have to be met before the pipeline is built?
- How does the NEB determine compliance with conditions?
- Will the public be afforded an opportunity to be involved in the condition compliance process?
- What involvement can I have in the project after it has been approved?
- How does the NEB plan to keep the public informed about Trans Mountain’s progress towards meeting the 157 conditions during the project’s pre-construction, construction and operation phases?
- Who will regulate the marine portion of the project?
- What if I observe potential problem with Project construction or operation?
1. Is the project now approved or does the applicant need any further permits or licenses?
On 19 May, 2016, the National Energy Board (NEB) found that the Trans Mountain Expansion Project is in Canada’s public interest and recommended that Governor in Council approve the Project, subject to 157 conditions.
On 29 November 2016, Governor in Council directed the NEB to issue a Certificate of Public Convenience and Necessity for the Trans Mountain Expansion Project.
Accordingly, on 1 December 2016, the NEB issued three legal instruments to Trans Mountain ULC (Trans Mountain), including the Certificate of Public Convenience and Necessity for the Trans Mountain Expansion Project. The NEB had previously issued five orders related to the Project, which also took effect on 1 December 2016. The eight legal instruments authorizing the construction and operation of the Project are subject to the 157 conditions as set out in the National Energy Board Recommendation Report.
Additionally, before construction can commence the Project is subject to a Detailed Route Approval process under the NEB Act. Trans Mountain may still need other types of approvals from other levels of government. It is the responsibility of the company to determine what permits and licenses are required.
2. When is the earliest date that construction could begin?
Trans Mountain has indicated that it plans to begin construction in September 2017 and go into service in late 2019. It is not uncommon for construction schedules to be changed from time to time.
3. How long does Trans Mountain have before the certificate expires? (sunset clause)
Certificates of Public Convenience and Necessity usually include a Sunset Clause. In the case of the Trans Mountain Expansion Project, the sunset clause states that the certificates and associated orders will expire on September 30, 2021, unless construction of the Project has commenced or the NEB otherwise directs prior to that date.
4. How did the Panel determine the conditions attached to this project?
The Panel, as an expert tribunal, used its expertise to determine the most appropriate conditions. The potential conditions are based on the evidence on the record, and include commitments made by the applicant and feedback received from participants.
5. What are conditions?
Conditions are requirements for a project. If the proposed project is approved, the conditions will form part of the certificate(s) or orders that the National Energy Board (NEB) will issue and enforce. Trans Mountain ULC will have to comply with these conditions.
The Trans Mountain Expansion Hearing Panel had authority under section 52 of the National Energy Board Act (NEB Act) to set the conditions directly related to the pipeline being applied for. It also has authority under the Canadian Environmental Assessment Act, 2012 (CEAA, 2012) to recommend conditions relating to mitigation measures and follow-up programs that the Governor in Council will establish under that Act.
In addition to legislative requirements, conditions can mitigate the risks and effects posed by a project so that it is designed, constructed and operated in a safe manner that protects human health and the environment. Some examples of conditions that may be imposed relate to, for example, engineering requirements, oil spill response requirements, restrictions on the timing of construction, and completion of studies such as traditional land use investigations. Conditions are typically organized by timing - either before construction, during construction, and before or during operation of the project.
The National Energy Board is responsible for verifying and enforcing compliance with each condition that is attached to the project. There is a range of enforcement tools available to the NEB.
6. What sort of conditions are attached to the project
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|
|Project-related marine shipping||6|
|Economics, finance and Markets||2|
7. Why does the Board need to send out Information Requests on Condition compliance?
Similar to the application phase, the NEB requires certain information relating to condition compliance to be on the record in order for it to be considered. If a company submission is unclear or requires additional information to ensure that the condition requirements are met, then the Board will use information requests to complete the record. Responses by the company will be posted on the NEB REGDOCs site.
8. What information and input was considered in forming these conditions?
Among other things, the conditions were based on evidence considered by the Board during its assessment of the Project application and they also reflect commitments the Applicant made during the assessment process.
Throughout the hearing process, the Panel heard from participants on ways to reduce negative impacts of the Project and make it safer through letters of comment, oral traditional and written evidence and through written questioning. The Panel is an expert tribunal and used its own review and analysis of the evidence and its experience in regulating pipelines to determine the conditions that should be met.
9. How does the Board ensure compliance?
There are various methods to ensure compliance, including field inspections. The Board routinely conducts compliance meetings and inspections of pipeline projects to verify regulatory compliance. The Board also conducts audits of company management systems. These compliance verification activities continue throughout the life of a project.
Each year the NEB conducts targeted compliance verification activities including six comprehensive audits and at least 150 inspections of regulated companies. This is in addition to the 100+ technical meetings and exercises conducted on an annual basis. These tools are effective in allowing the Board to proactively detect non-compliances and require they be corrected before they become issues.
10. Can the applicant refuse to implement the Panel's conditions?
Now that the project is approved, Trans Mountain must comply with all conditions as set out in the legal instruments authorizing the project. The National Energy Board is responsible for verifying and enforcing compliance with all of the conditions. Trans Mountain can't modify any conditions without prior approval from the National Energy Board and can't proceed until all relevant conditions for the proposed work have been met. Non-compliance can result in, among other things, issuance of administrative monetary penalties or suspension of further activities.
11. Why are there only 157 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.
12. 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 in the NEB’s Recommendation Report [Filing A77045] which illustrates at what stage of the regulatory lifecycle specific conditions must be fulfilled.
13. How does the NEB determine compliance with conditions?
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. This can occur through both formal (e.g, letters) and informal (e.g., e-mails, phone calls) means. Meetings between the NEB and the company about particular conditions can also take place.
Only when the NEB is satisfied that the information meets the requirements of a specific condition will the company be authorized to proceed with the activities associated with that condition. Before the project can begin operating, the company must receive NEB approval through a “Leave to Open” application. Ongoing inspections and audits continue throughout the construction and operation of a project. The NEB is the final authority in all matters relating to compliance with conditions.
14. Will the public be afforded an opportunity to be involved in the condition compliance process?
Yes. If you have concerns or are directly impacted by the Board’s decisions on specific condition compliance filings, we strongly encourage you to raise your concerns directly with Trans Mountain as soon as possible. If you have unresolved concerns about a condition compliance filing, you can submit your comments to the NEB by writing to the Secretary of the Board and copying the company on your submission. Comments should be submitted in a timely manner.
If you need help filing your comments, please contact a Process Advisor at TMX.ProcessHelp@neb-one.gc.ca
The Board will read and consider your input. Trans Mountain will also be provided an opportunity to respond to these comments. The NEB will decide if further actions are needed on a case-by-case basis and share any next steps publically.
15. What involvement can I have in the project after it has been approved?
If you have a concern about a project, or are interested in participating in the project’s development after it has been approved, you are encouraged to first contact the company. Unresolved concerns can be raised with the NEB.
The NEB also has an Issue Resolution Process to address complaints from landowners or other affected persons, and can provide Appropriate Dispute Resolution (ADR) to help resolve outstanding issues that are not related to compensation. ADR could take the form of a meeting between you and the company, which may be facilitated by trained NEB staff, a Board member or by another neutral third party. Please contact a Process Advisor for more information. The NEB has various resources to help you understand other aspects of the regulatory process. All of these are available online or you can request a copy from the NEB. Some resources you may be interested in are:
- NEB Safety and Environment Webpage
- National Energy Board: Landowner Guide
- Guidance for Safe Crossings of NEB-Regulated Pipelines Using Agricultural Vehicles and Mobile Equipment [Filing A27788]
- Living and Working Near Pipelines Video
Finally, please know that Board staff are happy to answer questions you may have about the NEB’s regulatory oversight of the Project, and can be reached at TMX.ProcessHelp@neb-one.gc.ca.
16. How does the NEB plan to keep the public informed about Trans Mountain’s progress towards meeting the 157 conditions during the project’s pre-construction, construction and operation phases?
Trans Mountain commenced submitting documents related to the conditions in January, 2017. Of the 157 conditions imposed, 98 of them require filings from the company prior to the start of construction. As such, the conditions filing work is well underway and the NEB is committed to making this process as transparent and understandable as possible.
The NEB’s new, interactive condition compliance tool for the Trans Mountain pipeline provides Canadians with easy access to all the project’s condition compliance information and filings. Follow Trans Mountain’s progress towards meeting all 157 Project Conditions on the NEB’s interactive conditions tool.
17. Who will regulate the marine portion of the project?
Marine operations will be regulated by Transport Canada, the Canadian Coast Guard, and possibly other levels of government.
18. What if I observe potential problem with Project construction or operation?
The NEB receives a variety of complaints related to projects about reclamation, crop damage, water drainage, noise, damage caused by construction, concerns with representatives from the company or other organizations, and so on.
In such cases, you are encouraged to first contact the company to resolve the matter. Unresolved concerns can be raised with the NEB. You can contact a Process Advisor for more information.
Please remember, however, that any construction site, pipeline or otherwise, can be a hazard to public safety while active construction is ongoing. Safety warnings signs, fencing, and other measures are put in place for your safety, and should always be respected.
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