NEB revised Exhibit List and FER Concerns

Posted November 25, 2014 | Categories : Marine Reserves,News,Oil Spill Threat |

An update of all the publications surrounding the Kinder-Morgan Trans-Mountain Expansion Hearings can be found here: ( updated Dec . 9)

I have included here items with particular relevance to The Board of Friends of Ecological reserves role as Intervenors in the Hearings: My comments are in Green below

The 115 pages of lists of Intervenors Concerns

and recent developments with implications for Ecological reserves:

1. the TERMPOL reply to NEB.

“In the National Energy Board’s August 22, 2014 Information Request and
November 12, 2014 letter, the Board states the TERMPOL review may provide
information on “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”. As noted in Transport Canada’s application to participate as an Intervenor in the National Energy Board’s review of the Trans Mountain Expansion Project, Transport Canada is conducting a TERM POL review to examine “how the proposed marine shipping components of the project can be carried out safely.” To provide further clarification, Transport Canada submits that TERMPOL is avoluntary review process which focuses on the marine transportation components of a project with the intent to improve, where possible, those elements of a proposal which could threaten the integrity of a vessel’s hull while navigating and/or during cargo transfer operations alongside a terminal. It is not within the scope of a TERMPOL review to comment on the potential environmental and socio-economic effects related to a project.”

Implications for the Intervenor process of Friends of Ecological reserves:

Note the bolded print in the paragraph above: The NEB expected Transport Canada to deal with the potential environmental and socio-economic effects—- including the potential effects of accidents or malfunction… Note transport Canada’ reply: ” It is not within the scope of a TERMPOL review to comment on the potential environmental and socio-economic effects related to a project.”

2. Robyn Allen’s motion to Stay of Procedures of November :

re : On August 10, 2014 Kinder Morgan Inc. announced it would purchase Kinder Morgan Energy Partners LP (KMP), Kinder Morgan Management LLC (KMR) and El Paso Pipelin Partners LP (EPB). When Kinder Morgan Inc. purchases Kinder Morgan Energy Partners LP, it also purchases the NEB regulated Trans Mountain and Cochin pipelines. The transactions scheduled to close November 26, 2014. When the purchase is complete Kinder Morgan Energy Partner shares will cease being traded on the New York Stock Exchange. The Trans Mountain Pipeline system will have a new 100% owner

Trans Mountain Pipeline ULC has not made the Board and Participants at this Hearing aware of the new corporate structure whereby KMI becomes the owner of regulated assets and how that structure impacts Kinder Morgan’s liability, particularly in the event of an oil spill. “

Further reference on this: Kinder Morgan is Breaking the Law Economist Alleges–by Geoff Dembicki in The Tyee Nov 24th, 2014.—-

“Why does any of this matter? Allan is not only alleging that a Canadian law was violated, she’s worried that the corporate restructuring may weaken Kinder Morgan’s liability for an oil spill. “Nothing was communicated to the NEB about what this deal means in terms of changes to [Kinder Morgan’s] insurance program,” Allan claimed. In the event of an oil spill, say, in Vancouver’s Burrard Inlet, “it’s very possible that it will be much more difficult to go after Kinder Morgan,” she alleged.

3. The withdrawal from the Intervenor Process by Marc Elieson:

from page 3/4

“6. The Province of British Columbia stated that “Trans Mountain’s failure to File the evidence requested by the Province in Information Request No. 1 denies the Board, the Province and other Intervenors access to the information required to fully understand the risk posed by the Project, how Trans Mountain proposes to mitigate such risk and Trans Mountain’s ability to effectively respond to a spill related to the Project.”
The Province of British Columbia has the responsibility for undertaking due diligence on behalf of the public trust of British Columbians. The 80 questions Trans Mountain refused to answer—which the Province believed important enough to ask the Board for assistance and compel Trans Mountain to answer,—were denied by the Board. “
The Board, in an unprecedented fashion, has rejected the previously established practice in Section 52 public hearings on oil pipelines to provide for oral cross examination on the evidence submitted at the hearing. The Board maintains that two rounds of written information requests is sufficient to test the evidence. Even the Government of Canada’s Department of Justice (DOJ) has informed the Board that
evidence given without cross-­‐examination should be rejected. The DOJ stated “Canada’s position is that cross-­‐examination is necessary to ensure a proper evidentiary record…”
Furthermore, “cross -­‐examination serves a vital role in testing the value of testimonial evidence. It assists in the determination of credibility, assigning weight and overall assessment of the evidentiary record. It has been termed ‘the greatest legal invention ever invented for the discovery of truth’…without cross-­‐examination the Board will be reviewing only untested evidence.”