Enbridge’s environmental policy may face assessment – Panel asks how voluntary commitments can be made mandatory

By Peter O’Neil, Edmonton Journal August 27, 2012

OTTAWA – Transport Canada is being asked to assess how Enbridge Inc.’s “voluntary” commitments to prevent the dumping of diluted bitumen crude into the Pacific Ocean can be made “mandatory and enforceable.”

The request from the Joint Review Panel considering the company’s $6-billion pipeline project was in response to a Transport Canada-headed government review released in February.

The study said there are “no regulatory concerns” regarding marine safety due to a significant increase in tanker traffic on B.C.’s north coast to deliver crude to and from the Northern Gateway terminal in Kitimat.

Enbridge used Transport Canada’s conclusions to reassure its shareholders, and a senior company official said in March the report proves the pipeline will actually enhance shipping safety on the north coast.

Anti-Northern Gateway groups such as the Coastal First Nations said the report either ignored or minimized factors such as “treacherous passageways, poor weather conditions and human error.”

The JRP, established under the National Energy Board Act and the Canadian Environmental Assessment Act, has given Transport Canada until next Tuesday to respond to its request.

That day marks the start of the autumn session of public hearings at which registered participants can cross-examine witnesses, starting with four days of hearings in Edmonton.

“Please provide a detailed discussion on what provisions exist in relevant Canadian marine shipping legislation to ensure that Northern Gateway’s voluntary marine shipping risk reduction measures (e.g. use of escort tugs, installation of radar, transit speeds, and operational limits) are and remain mandatory and enforceable,” the JRP said.

The JRP, Transport Canada and Enbridge all refused to comment Monday on the thorny issue of how voluntary actions could be made mandatory without changes in laws or regulations. However, Enbridge spokesman Ivan Giesbrecht defended his company’s plan to protect the ocean.

“We won’t speculate about future legislation changes, but we can confidently say that our marine safety plan, as it is proposed today, meets or exceeds all applicable Canadian regulations,” Giesbrecht wrote in an email.

The original Transport Canada report, made public in February, was conducted under a process known as the Technical Review Process of Marine Terminal Systems and Transshipment Sites.

It is a non-binding interdepartmental process launched in the late 1970s that included, in this instance, the participation starting in 2009 of several federal departments, as well as the B.C. environment ministry, the municipality of Kitimat, the Haisla First Nations, the B.C. Chamber of Shipping and the Council of Marine Carriers.

TERMPOL looked at the implications of a project that would involve the annual export of approximately 30 million tonnes of crude oil, and the import of 11 million tonnes of condensate, transported by 250 or so tankers arriving and leaving the Kitimat terminal.

The report cited various national and international laws and conventions that shipping companies must adhere to, including Canada’s Marine Liability Act that is based on the “polluter pay” principle.

Enbridge, in addition to its promise to comply with rules such as a requirement to accept only double-hulled tankers at the port, also promised voluntary measures such as a commitment to have two escort tugs, one tethered to the vessel, accompany tankers laden with oil through “confined channels” to and from the terminal.Tugs would also have to be equipped with oil pollution emergency equipment, while tankers would be required to follow operational limits based on conditions such as high wind, rough seas and visibility limits.

“While there will always be residual risk in any project, after reviewing the proponent’s studies and taking into account the proponent’s commitments, no regulatory concerns have been identified for the vessels, vessel operations, the proposed routes, navigability, other waterway users and the marine terminal operations associated with vessels supporting the Northern Gateway project,” Transport Canada concluded.

The report concluded the government doesn’t need to consider new regulatory requirements. But it also stressed the importance of Enbridge’s voluntary measures, noting those promises “will help ensure safety is maintained at a level beyond the regulatory requirements.”

Enbridge senior executive Janet Holder said shortly after the report was released that the conclusions showed that Northern Gateway was “well-planned and safe – and indeed would enhance safety for all shipping on B.C.’s north coast.”

In other Northern Gateway developments, the federal government has written to the JRP asking that New Democratic Party MP Nathan Cullen be denied his request to grill officials from Enbridge and four federal departments for up to 10 hours.

A federal justice lawyer said Cullen, whose riding includes Kitimat, is trying to ask questions that are either not within the panel’s mandate or are unrelated to evidence already filed by participants or unrelated to their departments’ mandates.

“To allow such questions would undermine fairness to the witnesses, delay the proceedings and would not assist the panel in its assessment,” Kirk Lambrecht wrote.

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Original source article: Enbridge’s environmental policy may face assessment