FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 1 of 11
Hearing Order OH-001-2014
Trans Mountain Pipeline ULC (Trans Mountain) Application for the Trans Mountain Expansion Project
Procedural Direction No. 11 – Process for hearing motions to compel full and adequate responses to intervenor Round 2(b) information requests (IRs) and IRs about the TERMPOL report
Organizational chart for comments on inadequacy of IR responses
IR #
1.1
IR Wording
Trans Mountain’s response to IR
a. By what means does Kinder Morgan intend to resolve
this discrepancy set out above in the reference section
within the maritime community and within its own
documents?
a. Trans Mountain does not find any discrepancy in its
response. The marine network is jointly managed by the
two nations thus allowing smooth and safe flow of
traffic to each country’s ports. Trans Mountain has been
closely liaising with USCG for a number of years on the
b. How does Kinder Morgan account for the inconsistent
project and continues to keep the USCG apprised of
characterization of the regulatory environment in which
project developments on an ongoing basis. All vessels
tankers transit en-route to and from the Burnaby
nominated to Westridge Marine Terminal must meet all
terminal described above?
applicable local, national and international rules and
c. Given such uncertainty how can Kinder Morgan assure
regulations.
U.S. citizens that additional safety measures will be able
b. Please refer to response to FOE-US TERMPOL IR
to be exercised by the U.S. Coast Guard in the future on
No. 1.1a.
these tankers you claim to be in “innocent passage”?
c. Please refer to response to FOE-US TERMPOL IR
d. What assurances can you give that the safety
No. 1.1a. Trans Mountain does not detect any
recommendations will be implemented and to what
“uncertainty” in how Project-related vessels are
degree will U.S. interests be engaged in any subsequent
monitored currently or in the future by authorities in
changes?
either Canada or the US.
d. Please refer to the response to FOE-US TERMPOL IR
No 1.1a. Trans Mountain has not proposed any
additional measures beyond those reviewed by the
Termpol Review Committee.
Intervenor’s explanation for claiming IR response to be
inadequate
We find numerous responses from Trans Mountain to be
inadequate based on its unilateral determination that our
requests do not meet the criteria set out by the NEB rather
than that determination coming from the NEB itself.
Trans Mountain’s response to motion
In accordance with Procedural Direction No 8. (Filing
ID A64972), Procedural Direction No. 11 (Filing
ID A68095) and Board Ruling No. 33 (Filing ID A63066),
the requested information goes beyond the TERMPOL
report and any recommendations that are included within
the report. The TERMPOL IR process is designed to allow
Intervenors to probe and ask questions about the
TERMPOL report and any recommendations that are
included within the report. The TERMPOL IR process is
not meant to be an opportunity to ask information requests
that pertain to issues falling outside the TERMPOL report
and any recommendations that are included within the
report.
a. Despite Trans Mountain’s assertion in this response the
following two statements are explicitly incompatible
because you cannot have regulations applying while in
US waters at the same time allowing for free passage
based on the regulations of the destination port.
Furthermore, it does not follow that, “All vessels
nominated to the Westridge Marine Terminal must meet
all applicable local, national and international rules and
regulations” unless you are being intentional deceptive in
Furthermore, Trans Mountain’s response provided
your use of the word “applicable.”
sufficient information and detail for the Board in its
“….passing through United States waters, U.S.
consideration of the application and no further response is
regulations will apply in that leg of the voyage”
required.
(TERMPOL 1.1 2.1.4)
vs.
“In the case of shared waterways serving both nations,
Canada and the US allow the free passage of vessels to
access the other’s ports as long as the vessel meets all
requirements of the destination or departing port.” (Trans
Mountain Response to FoE US IR #1, Doc. ID A3W7Y6,
iii 1.8).
We have previously asked for the regulatory basis behind
Kinder Morgan’s assertions and our requests have gone
unanswered. The reason this question is essential to the
discussion is that as stated in response c.: “TM has not
proposed any additional measures beyond those reviewed
by the Termpol Review Committee” the question as to
whether new US regulations could be promulgated on
vessels bound for the Westridge marine terminal remain
uncertain until this question is resolved. Furthermore, this
unilateral decision underscores the lack of engagement of
US citizens in the way in which our waterways are
protected from this Canadian development.
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 2 of 11
IR #
1.2
IR Wording
Trans Mountain’s response to IR
Request:
Response:
As an indication of the responsiveness of Canadian
maritime regulations, what additional safety measures were
instituted after the near grounding of the Continental Spirit
on Patos Island, Washington on 19 July 1997 after calling
on British Columbia?
Trans Mountain is not in a position to respond to this
question and considers it out of scope of the currently
ongoing NEB review of the Project. Current and future tug
escort practice for laden tankers from Canada require a tug
to tether to the tanker 2 nautical miles north of East Point.
Intervenor’s explanation for claiming IR response to be
inadequate
The concern is not the uncertainty as to how vessels are
“monitored” as asserted in response C, but how they are
managed.
Trans Mountain’s response to motion
In accordance with Procedural Direction No 8. (Filing
ID A64972), Procedural Direction No. 11 (Filing
ID A68095) and Board Ruling No. 33 (Filing ID A63066),
the requested information goes beyond the TERMPOL
report and any recommendations that are included within
the report. The TERMPOL IR process is designed to allow
Intervenors to probe and ask questions about the
TERMPOL report and any recommendations that are
included within the report. The TERMPOL IR process is
not meant to be an opportunity to ask information requests
that pertain to issues falling outside the TERMPOL report
and any recommendations that are included within the
report.
Furthermore, Trans Mountain’s response provided
sufficient information and detail for the Board in its
consideration of the application and no further response is
required.
1.3
Request:
a. How many reportable vessel incidents and accidents
occurred on either side of the border in: Georgia Strait,
Boundary Pass, Haro Strait, and Juan de Fuca Strait
since2000?
b. How many of these incidents were used in the analysis
to determine the incremental risk posed by this
proposal?
Just because the two nations are in communication does not
mean the maritime regulations are comparable despite
a. Please refer to Volume 8C, Technical Report TR 8C 06
erroneous assertions made in formal comparability analysis
TERMPOL 3.8 (Filing ID A3S4T1). Also refer to the
by the US and Canadian Coast Guards. Based on recent
update provided in Project and Technical Update No. 4
presentations made by the US and Canadian Coast Guards at
(Filing IDs A64687, and A64686).
the Salish Sea Workshop in Bellingham it is clear that the
b. Please refer to Volume 8C, Technical Report TR 8C 06 two countries do not even have the same definition of
TERMPOL 3.8 (Filing ID A3S4T1).
reportable marine casualties.
Response:
Furthermore, due purportedly to Canada’s more restrictive
public disclosure laws, the US Coast Guard is constrained
from releasing the most basic data as to the type and location
of incidents occurring in Haro Strait, Boundary Pass and
Georgia Strait, even when they occurred in US waters,
because they were handled by Canadian VTS. Despite
summaries of these data having been presented at the Puget
Sound Harbor Safety Committee, the US Coast Guard has
denied their public release in response to formal Freedom of
Information Act requests based on the assertion that
Canadian Coast Guard does not want them to be. Due to this
lack of transparency, several million dollars have been spent
on vessel traffic risk assessments in this area that have
underrepresented the risks posed to these waterways due to
the lack of this basic information. If this is how the US and
Canadian Coast Guard cooperate, the waters are less safe as a
result.
Volume 8C, Technical Report TR 8C 06 TERMPOL 3.8
(Filing ID A3S4T1) states:
“The majority of incidents (in British Columbia) are related
to fishing vessel and tug and barges. There is only one
From the text noted in the IR motion it appears that the
intervenor is under the impression that Casualty Data
formed the basis of the risk analysis (quantitative risk
assessment). The QRA was carried out independent of
analysis of the Casualty Data using the DNV GL MARCS
model and a comparison was provided in TERMPOL 3.15
between the casualty data results and the risk modelling
results of the QRA; please see Volume 8C, Termpol 3.15,
Section 7.5.2. (Filing ID A3S5F6).
In accordance with Board Ruling No. 33 (Filing
ID A63066), Trans Mountain’s response provided
sufficient information and detail for the Board in its
consideration of the application and no further response is
required.
As further noted by the Board in Ruling No. 33, if an
Intervenor disagrees with the answer, rather than seeking
to compel a further answer, the Intervenor may file its own
evidence in response or provide its views during final
argument.
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 3 of 11
IR #
IR Wording
Trans Mountain’s response to IR
Intervenor’s explanation for claiming IR response to be
inadequate
incident involving a tanker vessel during the period from
2002-2011. That incident did not lead to damage of the hull
or oil spill.” Figure 5-5 shows that there were an average 34
tug and barge incidents between 2002-2010 and 28 in 2011.
It is not clear why the data are not more current, but this
figure clearly shows the risk posed by tug and barges
underscoring the significance of failure of the Termpol
analysis not to include bunkering operations in its analysis of
the risks posed by this project.
The study goes on to say, “There have been 6 incidents with
tanker vessels in the last 20 years, with an average of 0.3
incidents per year for the region. It has to be emphasized that
the type of incidents varies from minor incidents (e.g.
breaking a fender) to more serious incidents (e.g. collision
and grounding).
The majority of the incidents for all vessels and also for the
tankers are contact damage. On average, over the 20 years,
more than 60 % of the incidents are contact damage or other
dock related incidents. There is no information on the
number of assignment/transits of tanker vessels, so it is not
possible to calculate an incident frequency per tanker vessel
transit.”
Given that just one tanker or oil barge incident can have
decadal impacts it is important that more details as to the
location and nature of these incidents be presented to inform
the adequacy of the proposed mitigation measures. However,
the failure to include such data is likely to reflect the lack of
transparency associated with Canadian Coast Guard
operations as expressed in the first section of these
comments.
There appears to be more data from the US Coast Guard. As
reported in this section, “The majority of incidents for the
U.S. West Coast fall into the incident categories “material
failure/loss of electricity” and “other” (Figure 6-4). There
have been 5 groundings, 5 allisions and one collision incident
involving tanker vessels in the U.S West Coast in 2006-2010,
which gives an annual frequency of one grounding and
allision per year and 0.2 collisions per year.
This is a significant amount of risk reflective of the greater
volume of tanker traffic than is currently calling on the
Westridge Marine Terminal, but is instructional as to what
can be expected as the frequency of tanker transits increases.
It also does not reflect the frequency of incidents involving
tank barges and ATBs that carry an increasing volume of oil
along the west coast. Once again it is not clear as to why the
last five years worth of data are not included in this analysis.
Trans Mountain’s response to motion
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 4 of 11
IR #
IR Wording
Trans Mountain’s response to IR
Intervenor’s explanation for claiming IR response to be
inadequate
“Figure 6-5 presents the casualty for the tank vessels in the
Salish Sea, excluding the tank barges. The annual number of
incidents ranges from 3 (2007 & 2008) to 8 incidents (2006).
There was one allision in 2006, but no collision or grounding
incidents in the five year time period. This gives an annual
frequency of 0.2 for allision. Since the data only covers 5
years and the number of vessels is relatively low in this area,
the validity of the frequency estimates is relatively low.
However, it gives an indication of what impact a high level
of navigational risk controls can have on the level of
navigational safety in the area, because of the low or nonexisting number of allision, collision and grounding. These
accident types are the ones directly related to the
effectiveness of the navigational risk controls implemented in
the area.”
It is irresponsible not to include all of the 25 tanker incidents
in the US waters of the Salish Sea over a five period depicted
in figure 6-5 (including fires and mechanical failures) when
describing the risks associated with a 7-fold increase in
tanker traffic bound to and from the Westridge Marine
Terminal as a result of this proposal. While not all of these
incidents can be addressed with “navigational risk controls”
that does not mean that the risk is not present or that there
needs to be a far more robust response system in place than
currently exits. It also makes a mockery of the ridiculously
protracted return times for oil spills estimated as a result of
this proposal – “In other words, 1000 tank vessels have the
likelihood of 1.6 accidents with oil spill within a year of
operation.”
Furthermore, by excluding oil barge traffic significantly
underestimates the risk exposure to these waters, including
serving the bunkering needs of tankers calling on Westridge
from US refineries. Only the US tanker incidents are plotted
on charts (fig 6-7) while those in Canadian water are not
further undermining understanding of risk exposure
associated with this proposal.
Trans Mountain’s response to motion
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 5 of 11
IR #
1.4
IR Wording
Request:
Trans Mountain’s response to IR
Response:
a. Why didn’t TERMPOL account for the potential
a. Not all collisions lead to an oil spill. The potential of a
volume of oil spilled by the vessel that collides into the
bunker spill is common to all vessels and not restricted
tanker focus vessel, from spills associated with transfers
to tankers alone. Furthermore, bunker quantity onboard
of bunker fuel or the shipping of bunker fuel for the
is far less that the quantity of cargo oil onboard a tanker
tankers from refineries in Washington State?
and Trans Mountain has assessed the risk of up to
credible worst case size cargo oil spill, which is far less
b. Why did Kinder Morgan use “credible worst case spill”
than any bunker spill possible with consequences that
instead of worst case spill as issued in the U.S.? As a
are also commensurately low. Please also refer to
result of these real world omissions both the frequency
response to FOE-US IR No. 2.05 (Filing ID A4H8R8).
and volumes of oil spilled is underestimated in the
b. Trans Mountain Pipeline ULC (Trans Mountain) is
current analysis, thereby rendering any conclusions
mindful that the National Energy Board (NEB) directed
unsupported by the facts.
intervenors to ask questions in this round that are
specific to Transport Canada’s TERMPOL Report and
recommendations in Procedural Direction No. 8 (Filing
ID A4F9Q4). It is not clear from the intervenor’s
request how the question relates to Transport Canada’s
Report or recommendations. Credible worst case spill is
discussed in Section 9.1.5, Volume 8C, Technical
Report TR 8C 12 TERMPOL 3.15 (Filing ID A3S5F6)
and meets the NEB’s guidance on this matter.
Intervenor’s explanation for claiming IR response to be
inadequate
Trans Mountain’s response to motion
a. FoE US made a motion to compel an adequate response
Trans Mountain submits that the intervenor’s round 2 IR
from Trans Mountain for FOE-US IR No. 2.05 (Filing ID motion was previously addressed by the NEB and is out of
A4H8R8) as follows:
the scope for the TERMPOL IR process.
FoE US Motion to Compel:
In accordance with Procedural Direction No 8. (Filing
ID A64972), Procedural Direction No. 11 (Filing
The existence of the North American ECA does not
ID A68095) and Board Ruling No. 33 (Filing ID A63066),
preclude the use of heavy bunker fuel 200 miles offshore.
the requested information goes beyond the TERMPOL
The significant cost savings associated with this product
report and any recommendations that are included within
assures that tankers calling on the Burnaby terminal will
the report. The TERMPOL IR process is designed to allow
bunker both types of fuel.
Intervenors to probe and ask questions about the
The answer to this question still avoids addressing where TERMPOL report and any recommendations that are
this activity will occur nor does the TERMPOL analysis included within the report. The TERMPOL IR process is
include the added spill risk associated with these transfers not meant to be an opportunity to ask information requests
nor the additional risk associated with the transport of
that pertain to issues falling outside the TERMPOL report
these products.
and any recommendations that are included within the
Contrary to the assertion “that only very occasionally do report.
tankers bunker in Vancouver,” research by the Puget
Furthermore, Trans Mountain’s response provided
Sound Harbor Safety Committee found that, on average, sufficient information and detail for the Board in its
half the vessels calling on Vancouver take bunker fuel. If consideration of the application and no further response is
this activity does not occur in Vancouver proper, it still
required.
needs to be accounted for which was not done in the
TERMPOL report despite assertions made otherwise.
Further assertions that, “Trans Mountain expects that
trend to continue” does not address this concern at all.
While bunkering is “not specific to Project-related
tankers” risks associated with increases in such high risk
activities need to be accounted for. Trans Mountain could
make conditions to their berthing agreements with tanker
companies to address the safest alternatives for these
activities but have not done so, nor has it accounted for
their existence in their risk analysis.
Trans Mountain response:
In accordance with Board Ruling No. 33 (Filing ID
A63066), Trans Mountain’s response provided sufficient
information and detail for the Board in its consideration
of the application and no further response is required.
Friends of the Earth US reply:
Friends of the Earth asserts that this is an inadequate
response to both our motion and the IRs themselves. We
reassert our motion to compel and urge the National
Energy Board to compel adequate responses from Trans
Mountain.
In addition, the failure to be more responsive makes a
mockery of the NEB process. If Trans Mountain is
allowed to be so dismissive of our substantive questions,
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 6 of 11
IR #
IR Wording
Trans Mountain’s response to IR
Intervenor’s explanation for claiming IR response to be
inadequate
Trans Mountain’s response to motion
then it will reflect that the NEB is just going through the
motions of seeking public input on this proposal's
significant risks to US and Canadian waters and peoples.
b. By excluding oil barge traffic significantly underestimates
the risk exposure to these waters, including serving the
bunkering needs of tankers calling on Westridge from US
refineries. Only the US tanker incidents are plotted on
charts (fig 6-7) while those in Canadian water are not
further undermining understanding of risk exposure
associated with this proposal.
Lessons should be learned from the Exxon Valdez disaster
in which contingency plans were limited to “probable
worst-case spills” based on purported safety measures
resulting in a complete failure to respond to the Exxon
Valdez disaster.
1.5
a. This narrow-minded statement indicates that TM is
merely undergoing a paper exercise to meet regulatory
a. Why didn’t TERMPOL account for the potential
a. Potential navigational impacts of future forecast
hurdles and is not interested in addressing how the
navigational impacts project tankers would have on the
shipping across the marine network have been analysed
increases in vessel traffic associated with their proposal
cumulative effects of additional port developments on
in Termpol 3.15. Please refer to Termpol 3.15,
would actually impact the overall risk to the waterway
both sides of the border to include non-focus vessels
Section 5 and to Table 12 (Filing ID A3S5F6).
that its tankers share with numerous other vessels in the
when estimating frequency and volumes of accidents
Cargo oil spill risk of all ships in the network has also
second most traffic laden water-body in North America
and oil spills?
been assessed, please refer to Termpol 3.15, Table 20.
based on data from the Marine Exchange. By not
b. How can the use of simple percentage increases in
Please note that revised cargo oil spill frequency results
considering the cumulative impacts renders this effort
vessel traffic be used as realistic characteristic of risk as
are available in Response to NEB IR regarding
meaningless.
compared to the methodology used in the 2010 Vessel
TERMPOL report and Outstanding Filings (Filing ID
Traffic Risk Assessment cited above?
A4G3U5). Trans Mountain is aware that the Termpol
Review Committee invited the Marine Exchange to
present to the committee on the Vessel Traffic Risk
Assessment study.
Request:
Response:
b. Trans Mountain believes that the methodology applied
to the studies are of high technical standard and results
of the DNV risk assessment for the Project-related
increase in tanker traffic are comparable or more
conservative to the other risk studies conducted in the
region. Please refer to the response to Tsawout FN IR
No. 2.09a (Filing ID A4H9H1).
In accordance with Board Ruling No. 33 (Filing
ID A63066), Trans Mountain’s response provided
sufficient information and detail for the Board in its
consideration of the application and no further response is
required.
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 7 of 11
IR #
1.6
IR Wording
Trans Mountain’s response to IR
Intervenor’s explanation for claiming IR response to be
inadequate
i. Despite Trans Mountain’s question as to the relevance of
this request, the ability to respond to a dilbit spill is
i. How can Kinder Morgan continue to assert it has or will i. Trans Mountain Pipeline ULC (Trans Mountain) is
fundamental to the question at hand given that this is the
have the ability to respond effectively to a dilbit spill
mindful that the National Energy Board (NEB) directed
majority of oil that is proposed to be transported by the
given the current state of the knowledge?
intervenors to ask questions in this round that are
Trans Mountain expansion. Trans Mountain’s repeated
specific to Transport Canada’s TERMPOL Report and
ii. What measures has Kinder Morgan already taken to
referral Gainford report does not address the more recent
recommendations in Procedural Direction No. 8 (Filing
achieve a “world-class” tanker safety plan to address the
studies we cited in our references to this IR.
ID A4F9Q4). It is not clear from the intervenor’s
risks their existing traffic already poses??
request how the question relates to Transport Canada’s ii. It is surprising to note that the most recent example is
Report or recommendations. However to respond to the
2011 other than ongoing participation in the Chamber of
request, please refer to the Gainford report (Filing IDs
Shipping Navigation & Pilotage Committee.
A3S5G2, A3S5G4, and A3S5G5), as well as to
Comparison of Properties of Diluted Bitumen Crudes
with other Oils (Filing ID A3S5G7) for more
information.
Request:
Response:
ii. “World Class” is a means to express a worthy objective
that Trans Mountain supports. However, it must be
recognized that because of differences in geographic,
commercial, technical and political settings around the
world, there is no single formula or example of "world
class" that can be copied from another regime and
directly applied to the Canadian context. Trans
Mountain believes that the existing traffic management
plan, commensurate with the traffic, for the study area
is of a high standard and comparable with global
standards.
Trans Mountain will continue to work in a cooperative
manner with the agencies listed in order to ensure
continued safety and efficiency of marine transportation
related to its facilities. Past examples of such
cooperation include:
·
·
·
·
·
·
·
·
Participation in PMV’s review of the MRA (20042010)
Contribution for expert review of escort techniques
(2007)
Contribution and logistics for live trial of escort
techniques (2007)
Contribution for improved pilotage equipment
(portable pilotage units) (2009)
Support for joint Pilot and Tug Master training
(2009)
Support for improved Navigational Aids (2010)
Contribution for BCIT Marine Simulator Upgrade
(2011)
Participation in the Chamber of Shipping
Navigation & Pilotage Committee
Trans Mountain’s response to motion
In accordance with Procedural Direction No 8. (Filing
ID A64972), Procedural Direction No. 11 (Filing
ID A68095) and Board Ruling No. 33 (Filing ID A63066),
the requested information goes beyond the TERMPOL
report and any recommendations that are included within
the report. The TERMPOL IR process is designed to allow
Intervenors to probe and ask questions about the
TERMPOL report and any recommendations that are
included within the report. The TERMPOL IR process is
not meant to be an opportunity to ask information requests
that pertain to issues falling outside the TERMPOL report
and any recommendations that are included within the
report.
Furthermore, Trans Mountain’s response provided
sufficient information and detail for the Board in its
consideration of the application and no further response is
required.
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 8 of 11
IR #
1.7
IR Wording
Request:
Will Kinder Morgan oil spill response capabilities equal or
exceed that found in Washington waters?
1.8
Trans Mountain’s response to IR
Intervenor’s explanation for claiming IR response to be
inadequate
TERMPOL Volume 8A, Section 5.5.2, Table 7.1 (Filing
ID A3S4Y6) Spill Size Planning Volume Based on Free Oil
Trans Mountain Pipeline ULC (Trans Mountain) is mindful
Spilled. While the proposed enhancements to the Canadian
that the National Energy Board (NEB) directed intervenors
response organization is based on 20,000 tonnes, which is
to ask questions in this round that are specific to Transport
claimed to be a credible worst case discharge from an
Canada’s TERMPOL Report and recommendations in
Aframax tanker, US federal requirements and Washington
Procedural Direction No. 8 (Filing ID A4F9Q4). It is not
State requirements require contingency planning for the loss
clear from the intervenor’s request how the question relates
of the ship’s entire cargo and fuel (47,607-140,299 tonnes)
to Transport Canada’s Report or recommendations.
complicated by adverse weather.
Information of the proposed enhanced oil spill response
regime is available in Volume 8A, Section 5.5.2 (Filing
ID A3S4Y6). Please also refer to Future Oil Spill Response
and Approach Plan (Filing ID A3S5I9).
Response:
ii. This narrow-minded statement indicates that TM is
merely undergoing a paper exercise to meet regulatory
i. How is this analysis able to conclude the project’s
i. Trans Mountain Pipeline ULC (Trans Mountain) is
hurdles and is not interested in addressing how the
impact on marine mammals would be low if you do not
mindful that the National Energy Board (NEB) directed
increases in vessel traffic associated with their proposal
know how often collisions occur with marine mammals
intervenors to ask questions in this round that are
would actually impact the overall risk to the waterway
currently?
specific to Transport Canada’s TERMPOL Report and
that its tankers share with numerous other vessels in the
recommendations in Procedural Direction No. 8 (Filing
Request:
second most traffic laden water-body in North America
ID A4F9Q4). It is not clear from the intervenor’s
based on data from the Marine Exchange. By not
ii. Why didn’t the analysis include the cumulative impacts
request and the reference used how the question relates
considering the cumulative impacts renders this effort
of the increased number of project-related ships with the
to Transport Canada’s Report or recommendations.
meaningless.
increasing number of vessels calling on numerous other
It is understood that marine mammal-vessel strikes can
terminals under development?
occur during normal operation of any vessel,
Request:
irrespective of type, size, class, or speed; however,
these incidents are not considered routine events and
iii. Why weren’t the navigational impacts of the proposal
thus have been fully assessed in the context of potential
considered throughout the waterway instead of just
accidental events in Section 4.3.13 of Volume 8A
along the route taken by project- specific tankers?
(Filing ID A3S4Y3). Accidents and malfunctions (such
iv. Were the navigational implications of tugs returning to
as vessel strikes) are unplanned events that could result
the Burnaby terminal after they had left their escort
insignificant adverse effects, but are unlikely to occur.
duties? If not, why not?
Toothed whales have been infrequently struck by large
commercial ships. Project-related vessels will be
travelling at speeds between 6 and 15 knots (11-28
km/h) depending on location. In comparison, killer
whales are able to travel at speeds of up to26 knots (48
km/h) for short bursts and are thus easily able to avoid
slow moving vessels. The Marine Mammal Incident
Database (up to October 2012) has six records of
confirmed/probable strikes involving killer whales and
the maximum vessel size reported was for a ferry in the
Strait of Georgia. It is important to note that data
obtained from the BC Marine Mammal Incident
Database was collected by voluntary reporting of dead
and distressed animals. It is unknown to what extent all
incidents are reported. As a result, absence of incidents
Request:
Response:
Trans Mountain’s response to motion
In accordance with Board Ruling No. 33 (Filing
ID A63066), Trans Mountain’s response provided
sufficient information and detail for the Board in its
consideration of the application and no further response is
required.
As further noted by the Board in Ruling No. 33, if an
Intervenor disagrees with the answer, rather than seeking
to compel a further answer, the Intervenor may file its own
evidence in response or provide its views during final
argument.
In accordance with Board Ruling No. 33 (Filing
ID A63066), Trans Mountain’s response provided
sufficient information and detail for the Board in its
consideration of the application and no further response is
required.
As further noted by the Board in Ruling No. 33, if an
Intervenor disagrees with the answer, rather than seeking
to compel a further answer, the Intervenor may file its own
evidence in response or provide its views during final
argument.
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 9 of 11
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Trans Mountain’s response to IR
at any location does not demonstrate absence of a threat
in the report’s timeframe. Furthermore, DFO’s
Recovery Strategy for the Transient Killer Whale
recognizes collisions with vessels as a stressor with
‘demonstrated’ causal certainty, but a ‘low’ level of
concern (DFO 2007). The overall probability of a
Project-related vessel striking and injuring a killer
whale (or any other species of toothed whale) is
considered low.
ii. Trans Mountain Pipeline ULC (Trans Mountain) is
mindful that the National Energy Board (NEB) directed
intervenors to ask questions in this round that are
specific to Transport Canada’s TERMPOL Report and
recommendations in Procedural Direction No. 8 (Filing
ID A4F9Q4). It is not clear from the intervenor’s
request and the reference used how the question relates
to Transport Canada’s Report or recommendations.
Trans Mountain is not responsible for and not
required to assess the cumulative impacts of all
shipping in the region, but only of the Projectrelated increase in tanker traffic.
Trans Mountain has filed an application with the
National Energy Board (Board or NEB)proposing to
construct and operate the Trans Mountain Expansion
Project (Project),which is regulated under the National
Energy Board Act (NEB Act). As a designated project
under the Canadian Environmental Assessment Act,
2012 (CEAA 2012) the Project requires a CEAA 2012
environmental assessment for which the NEB is the
Responsible Authority.
In establishing the List of Issues for its review of the
Trans Mountain Expansion Project (Filing ID A3V6I2),
the NEB included the potential environmental and
socio-economic effects of marine shipping activities
that would result from the proposed project, including
the potential effects of accidents or malfunctions that
may occur. In its subsequent Letter and Filing
Requirements to Trans Mountain Pipeline ULC Related to the Potential Environmental and SocioEconomic Effects of Increased Marine Shipping
Activities -Trans Mountain Expansion Project (Filing
ID A53984) the NEB provided further direction
regarding the marine aspects of the review, including:
·
·
Consultation
Description of the increased in marine shipping
activities
Intervenor’s explanation for claiming IR response to be
inadequate
Trans Mountain’s response to motion
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 10 of 11
IR #
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Trans Mountain’s response to IR
·
·
·
·
Geographic extent of the shipping activities
Environmental and Socio-Economic Assessment
Navigation Safety
Mitigation Measures
To address these requirements Trans Mountain filed as
part of the Application Volumes 8A (Marine
Transportation), 8B (Marine Environmental and SocioEconomic Technical Reports) and 8C (TERMPOL
Reports) and this information has since been augmented
by Technical Updates and IR responses. Each volume
contains an NEB Filing Manual Checklist that identifies
where information may be found in the various volumes
of the Application.
iii. The risk analysis considers the navigational impacts of
Project-related tankers to the proposed shipping route.
The intervenor appears to be of the opinion that “project
specific tankers may cause other ships to avoid Haro
Strait and transit Rosario Strait”, which in Trans
Mountain’s opinion is a false assumption with no
foundation.
iv. It is unclear from the intervenor’s question as to
whether the information request pertains to navigation
risk or underwater noise effect on marine mammals.
The risk analysis is meant to consider the oil spill risk
for the region as a result of increased tanker traffic as an
outcome of the Project. The associated tug traffic is
associated with providing risk mitigation, and the
passage of tugs not engaged in escort services is not
material to oil spill risk. Tugs are manned by
professional and competent mariners and participate in
the marine network as any other vessel, which is not a
Project tanker.
Should the intervenor’s question pertain to the impact
of underwater noise associated with movement of escort
tugs associated to the project, please refer to the
Supplemental Underwater Noise Modelling for TMEP
Report (Filing ID A3Y3U2) for acoustic modelling
assumptions and results. These results will show that
cumulative underwater sound exposure levels (SELs)
were modelled along the planned marine shipping lanes
assuming a monthly average increase of 30 partlyloaded Aframax-sized tanker calls. Each call comprises
one inbound transit and one outbound transit. Outbound
tankers would be accompanied by escort tug. Tug
operators are likely to schedule and use their assets to
their advantage, so it is impossible to confirm the
Intervenor’s explanation for claiming IR response to be
inadequate
Trans Mountain’s response to motion
FOE U.S. TERMPOL IR
Motion to Compel Full and Adequate Responses
Page 11 of 11
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Trans Mountain’s response to IR
pattern during each trip. Acoustic modelling conducted
for the Project factored in the underwater noise
implications of escort tugs based on the assumption that
the accompanying escort tug joins the tanker’s
outbound route at Lonsdale Quay, which is about midpoint between the two tug operators in the Burrard Inlet,
and stays with the tanker to Cape Flattery and then
returns to Lonsdale Quay. This provides the entire
spectrum of effect within the Marine Regional Study
Area. It is likely that tug operators will optimize tug
usage to reduce fuel consumption and travel time, and
consequently reduce the overall cumulative impact of
the tug traffic related to the Project. Cumulative SELs
considered in the assessment therefore factored in the
increase in underwater noise resulting conservatively
from tugs travelling the entire marine shipping route
both inbound and outbound.
In either case, Trans Mountain believes the issue is fully
addressed from the perspective of impact of the project
on the marine network. Trans Mountain is confident
that its studies and risk assessments meet all
requirements of the NEB’s guidance on this matter.
Intervenor’s explanation for claiming IR response to be
inadequate
Trans Mountain’s response to motion