An applicant must demonstrate that it is able to build and operate safely, and protect people, the environment, and species living within the project area. Almost all participants in the Panel's process expressed concern about the potential for spills from pipelines, the Kitimat Terminal, and tankers associated with the Enbridge Northern Gateway Project. This chapter examines Northern Gateway's ability to anticipate, prevent, and respond to project malfunctions and accidents.
Northern Gateway said that, although an oil spill could affect a variety of habitats, the most critical effects would be expected to be to aquatic environments. The Panel notes that much of the evidence focused on potential spill effects and emergency preparedness and response planning in these environments.
The Panel has considered four key elements of Northern Gateway's emergency preparedness and response planning and capacity:
Under its Terms of Reference and the Canadian Environmental Assessment Act, 2012, the Panel's environmental assessment must take into account environmental effects of project malfunctions or accidents that may occur in connection with the Enbridge Northern Gateway Project. The spatial scope of the Panel's assessment was the pipeline, the Kitimat Terminal, and the marine shipping component of the project out to Canada's territorial sea boundary (also commonly referred to as the 12-mile limit). The National Energy Board does not regulate marine shipping. It is primarily under the jurisdiction of Transport Canada.
This section provides a brief overview of the regulatory framework that would apply to the project and discusses the roles and responsibilities of the various regulatory bodies.
Northern Gateway said that the project would be designed, constructed, and operated in accordance with the Onshore Pipeline Regulations under the National Energy Board Act.
Based on publically available information, the Panel provides the following summary of the National Energy Board's regulatory framework related to emergency prevention, preparedness, and response.
The Onshore Pipeline Regulations require companies regulated by the National Energy Board to use management systems to achieve safety, environmental protection, and other regulatory requirements. Management systems must be in place for the key program areas contained in the Onshore Pipeline Regulations, including:
A pipeline company is required to have a systematic, comprehensive, and proactive risk management approach integrated into its overall management system throughout the lifespan of a pipeline system. This includes design, construction, operation, maintenance, and abandonment. The Onshore Pipeline Regulations also reflect the National Energy Board's expectation for continual improvement with regard to safety, security, environmental protection, and the promotion of a safety culture.
Northern Gateway would be audited and evaluated against the legal requirements identified in the National Energy Board Act and its associated regulations, other relevant legislation and regulations, and any commitments made by Northern Gateway or conditions contained within the applicable project certificates or orders.
With respect to emergency management, a company must develop and implement an Emergency Preparedness and Response Program for all aspects of its facilities, including pipelines, loading facilities, tank farms, and operational activities. A company's Emergency Preparedness and Response Program should include the following elements:
The National Energy Board undertakes compliance verification activities and references a number of industry wide standards in addition to the emergency preparedness and response program elements described in the Onshore Pipeline Regulations.
Compliance verification activities are designed to provide feedback to the company, to determine if regulations are being followed, to assess if enforcement is required, and to compile information on the company's performance. Compliance information is used to track company performance trends and to assess the amount of oversight required in the future.
A company must also consider how to prevent and respond to emergency situations resulting from criminal activities. These may be related to terrorism, vandalism, or other property crime. These should be identified through a formal hazard analyses and security audits.
The Emergency Preparedness and Response Program must include procedures for receiving and disseminating information to first responders, adjacent commercial, industrial, or pipeline operations, product receivers and members of the public who may be involved in responding to an emergency or may be impacted by an actual or threatened act of terrorism or other criminal activity.
Parties filed, or referred to, the Office of the Auditor General of Canada's 2011 report on transportation of dangerous products which evaluated the National Energy Board's emergency management program. The report said that the Board had designed a sound risk-informed approach to monitor regulated companies' adherence to regulations and Board expectations. It recommended that the National Energy Board establish and implement a clear action plan that sets out specific steps to improve the Board's risk-informed model, including practices and procedures for monitoring compliance, documenting compliance, and procedures for follow-up on non-compliances. The action plan was fully implemented by the National Energy Board by April 2012.
Transport Canada provided an overview of the regulatory environment pertaining to marine shipping activities in Canada. A summary of relevant legislation, guidelines, and policies pertaining to shipping and navigational safety and oil spill preparedness and response is provided below. The summary is based on Transport Canada's response and other evidence from the Government of Canada.
Transport Canada said that the federal government has exclusive legislative jurisdiction over navigation and shipping, coastal fisheries, and aids to navigation such as beacons, buoys, and lighthouses. Transport Canada said that it has a comprehensive legislative and regulatory framework that helps ensure marine transportation is safe, secure, and environmentally responsible. Other federal departments, including Fisheries and Oceans Canada and Environment Canada, also have key roles regarding marine shipping activities and protection of the marine environment.
Marine shipping in Canadian waters is regulated in accordance with the principle that, as long as ships are in compliance with the law, they have the right to navigate within Canadian waters. The Canada Shipping Act, 2001 is the main legislation governing safety in marine transportation and protection of the marine environment. It aims to balance shipping safety and marine environmental protection while encouraging maritime commerce, and is applicable to all vessels operating in Canadian waters and Canadian vessels worldwide. No special permission or authority is required to transport goods in vessels that comply with the Canada Shipping Act, 2001.
In addition to national requirements, the Canada Shipping Act, 2001 and its regulations give effect to many international conventions which are enforced on Canadian vessels and on foreign vessels in Canadian waters. Transport Canada said that international organizations such as the International Maritime Organization and the International Labour Organization play a central role in establishing the highest possible maritime standards for safety and security, protection of the environment, and safety of seafarers. Canada works closely with these organizations in adopting these international standards into its marine safety regulations.
The International Maritime Organization is a specialized agency of the United Nations which focuses on the improvement of safety at sea and the prevention of pollution from ships. The International Maritime Organization also deals with international aspects of liability, compensation, and the facilitation of maritime traffic. International Maritime Organization member countries develop and promote the adoption of conventions, protocols, codes, and recommendations, to achieve their common objectives. Canada has ratified or acceded to several International Maritime Organization Conventions. Transport Canada said that this enables Canada to fully enforce safety and environmental standards in accordance with the Canada Shipping Act, 2001.
Some examples of marine safety and pollution prevention measures under the Canada Shipping Act, 2001 and its regulations include:
Transport Canada monitors compliance with the Canada Shipping Act, 2001 and enforces its requirements. Transport Canada has two main programs for monitoring compliance: Flag State Control and Port State Control. Flag State Control ensures that Canadian-flagged vessels are inspected to both Canadian regulations and, for vessels on international voyages, the appropriate international memoranda, conventions and protocols that are integrated into Canadian regulations. Port State Control is a ship inspection program whereby foreign vessels entering Canada's waters are boarded and inspected to ensure compliance with various major international maritime conventions.
The International Maritime Organization and the International Labour Organization provide the regulatory framework for the Port State Control program. Canada works together with the global Port State Control community to verify that foreign vessels entering Canada are in compliance with strict international safety and anti-pollution standards. Ships that are found to be in serious violation of standards are detained in port until their deficiencies have been rectified. The objective of Port State Control is to detect and inspect sub-standard ships and to help eliminate the threat that they pose to life, property, and the marine environment. All foreign tankers are inspected on their first visit to Canada and once a year thereafter.
The purpose of the Pilotage Act is to allow a mariner with extensive knowledge of a local waterway and its ports to board a ship and guide it safely to its destination. The Pacific Pilotage Authority, a federal Crown corporation, operates pilotage service on the west coast. In reference to the Enbridge Northern Gateway Project, Transport Canada said that local pilots would board tankers at established pilot boarding stations, either by helicopter or pilot boats, depending on visibility and weather conditions. A minimum of two pilots would board the tankers for transit to and from the Kitimat Terminal and through coastal waters. The use of local marine pilots for transit to and from the Kitimat Terminal, as proposed by Northern Gateway, meets the requirements set out in the Pacific Pilotage Authority Regulations.
Navigation safety and the Waterways Management Program
There are several regulations under the Canada Shipping Act, 2001 that help vessels navigate safely in Canadian waters. Vessels must have the appropriate navigation equipment, follow navigational rules and procedures, and have effective means of communications. Vessels must also have up-to-date nautical charts and, for each voyage, a passage plan that takes into account relevant information for safe navigation and protection of the environment, and allows the progress of the vessel to be closely monitored. There are vessel reporting requirements and vessel routing measures that also help ensure safe navigation.
Navigability in Canadian waterways is highly influenced by water levels and the bottom condition of shipping channels. The Waterways Management Program is intended to support safe, economical, and efficient movement of ships in Canadian waterways. The Canadian Coast Guard said that the physical characteristics of the proposed shipping routes for the Enbridge Northern Gateway Project fall within the Channel Design Guidelines of the Waterways Management Program.
Vessel reporting and vessel routing measures
Regulations have established vessel traffic services (VTS) zones along Canada's east and west coasts out to the limit of the territorial sea. Shipping in these zones is monitored by the Canadian Coast Guard – Marine Communications and Traffic Services (MCTS). Ships must report to an MCTS officer 24 hours before entering the VTS Zone and report prescribed information about the ship and its intended route, including any pollutant cargoes and defects. Vessels are not allowed to enter a VTS Zone unless they receive clearance from an MCTS officer. This allows any safety or environmental concerns to be addressed before the ship enters Canadian waters. Ships within the VTS Zone must also make regular reports at specified calling-in-points. Monitoring of ship traffic within a VTS Zone allows MCTS officers to provide information services that help on-board navigational decision-making.
Vessels approaching the west coast bound for the ports of Prince Rupert and Kitimat enter the Prince Rupert Traffic Zone. In response to a question from Ms. Brown, the Government of Canada said that, even in weak coverage areas, there is an update on a vessel's movements every minute. The Canadian Coast Guard said that the Enbridge Northern Gateway Project does not involve a significant workload increase for MCTS.
Ships of 300 tons gross tonnage or more (other than fishing vessels) engaged on an international voyage, and domestic ships of 500 tons gross tonnage or more (other than fishing vessels) must be fitted with an Automatic Identification System (AIS). AIS automatically provides information including the ship's identity, type, position, course, speed, navigational status, and other safety-related information, to AIS-equipped shore stations, other vessels, and aircraft. Ships can automatically receive AIS data from similarly fitted vessels. This improves a ship's situational awareness and the ability of shore VTS, if equipped to receive AIS, to monitor marine traffic. All five MCTS centres on the west coast are equipped with AIS.
Places of vessel refuge
Canada has a National and Regional Places of Refuge Contingency Plan that applies to all situations where a vessel needs assistance and requests a place of refuge within waters under Canadian jurisdiction. The Places of Refuge Contingency Plan is based on International Maritime Organization guidelines. When a vessel requests assistance through the MCTS, regional officers would invoke the plan and work with all appropriate partners to resolve the issue as quickly and effectively as possible. Places of refuge are not pre-designated and would depend on the circumstances of each situation. Northern Gateway has identified potential places of refuge within the Confined Channel Assessment Area.
In response to questions from the Coastal First Nations, Transport Canada said that there are no pre-designated places of refuge in the Pacific Region. The most suitable place of refuge can only be determined after the details of the specific incident are known. It also said that pre-designation of places of refuge is of little value due to the different circumstances associated with each incident.
Aids to navigation
The Canadian Coast Guard's Aids to Navigation Program provides an extensive system of short-range and long-range aids to navigation throughout coastal communities and inland waterways in the Pacific Region. Aids to navigation may include:
The Program provides aids to navigation where justified by the volume of traffic and the degree of risk, in accordance with its design methodology and provision directives. Aids to navigation are provided to help mariners navigate safely and do not replace prudent navigation practices or the use of onboard navigational equipment such as the latest charts, Global Positioning System (GPS) technology, and radar.
Canadian Coast Guard's Aids to Navigation Program is also responsible for providing detailed information on the operation of, and changes to specific aids. This information is communicated to mariners through Notice to Shipping MCTS broadcasts and Notice to Mariner publications and Internet postings. Canadian Hydrographic Services also receives this information for inclusion onto nautical charts.
The Canadian Coast Guard said that it is committed to completing a thorough review of the aids to navigation system with regard to the Enbridge Northern Gateway Project. The installation of new aids to service Kitimat is estimated to cost in the order of $2.5 – 3.0 million, not including maintenance costs. Northern Gateway said that it is has had discussions with Canadian Coast Guard as to how future additions to aids to navigation, including provision of shore based radar coverage, may be paid for, constructed, and maintained.
In response to questions from the Province of British Columbia and the Coalition, Northern Gateway said that the Canadian Hydrographic Service was scheduled to complete its chart update program by 2013. It also said that the Government of Canada was proposing improvements to navigational aids. Northern Gateway also committed to funding the installation of new radar and navigational aids in the event that the Canadian Coast Guard or Transport Canada does not fund them prior to operation of the project. Any such navigational aids would still be subject to approval by the Canadian Coast Guard.
Safety management systems
The Safety Management Regulations under the Canada Shipping Act, 2001 incorporate the requirements of the International Safety Management Code, which provides an international standard for safely managing and operating vessels and for preventing pollution. Safety management systems are formal management systems that strengthen safety awareness and pollution prevention practices. Safety management systems integrate formal rules and processes to enhance safety of daily operations and seek to identify and manage any risks before they cause accidents.
Transport Canada said that safety management systems allow vessel owners and operators to have a safety system that prepares them for the realities of day-to-day work and that meets safety management regulatory requirements. The requirement for a safety management system is an independent safety requirement and it does not replace safety requirements under other regulations. The Minister of Transport has authorized five Responsible Organizations to perform Safety Management System certification of Canadian vessels and the companies that operate them. Companies operating Canadian vessels are legally required to comply with the regulations. Transport Canada monitors and oversees the audit and certification process for the International Safety Management Code as part of its responsibilities under international shipping treaties. Foreign vessels are inspected through the Port State Control Program.
TERMPOL Review Process
Transport Canada said that the TERMPOL Review Process (Technical Review Process of Marine Terminal Systems and Transhipment Sites) is a voluntary review process for proponents involved in building and operating a marine terminal system for bulk handling of oil, chemicals, and liquefied gases. The TERMPOL Review Committee includes representatives of federal departments and authorities, including specialized subject matter experts in marine transportation. The process and committee are led by Transport Canada. The committee reviews a series of technical reports and studies prepared by the proponent according to terms of reference established by the committee. After reviewing the studies, the committee may request additional information or it may make recommendations related to the proposal. The work undertaken may also be used by other agencies or bodies when considering their own regulatory obligations and making recommendations.
Northern Gateway participated in a TERMPOL Review that was conducted concurrently with the Panel's process. Northern Gateway filed its TERMPOL technical documents with the Panel. Transport Canada filed the TERMPOL Review Committee's final report with the Panel. The report focused on navigation and safety of proposed tanker traffic to and from the Kitimat Terminal, including berthing and mooring procedures and cargo transfer operations at the terminal. Northern Gateway said that the TERMPOL Review complements the Panel's process by providing a forum for a detailed expert review of navigational issues, vessel operations, and accident hazards. The construction and operation of the marine terminal would be under the jurisdiction of the National Energy Board and were not reviewed by the TERMPOL Committee.
The TERMPOL Review Committee made a number of findings and recommendations in its report. Northern Gateway provided comments on the findings and recommendations of the committee. Northern Gateway said that it was committed to fully implementing the risk mitigation measures that it had submitted to the TERMPOL Review Committee.
Transport Canada noted that a TERMPOL report is not a regulatory instrument and the findings and recommendations are not binding on any department, agency, group or individual or the proponent. Implementation of any recommendation by the proponent is optional. To clarify this point, the Panel asked Northern Gateway and Transport Canada whether the TERMPOL Review Committee's recommendations, and other voluntary commitments made by Northern Gateway that exceed regulatory requirements, were enforceable under any existing marine shipping legislation. Their answers indicated that the recommendations and commitments are not directly tied to any legislative tool and, to be enforceable, would need to be tied to a certificate issued under the National Energy Board Act. The issue of the enforceability and legislative backing for Northern Gateway's marine voluntary commitments was also raised by other parties including the Haisla Nation.
Transport Canada said that it is the lead federal regulatory agency responsible for the National Marine Oil Spill Preparedness and Response Regime. As the lead regulatory agency, Transport Canada:
Transport Canada said that Canada's oil spill response regime is based on the principle of cascading resources. It said that, in the event of a spill larger than 10,000 tonnes (approximately 11,200 cubic metres), the company's capabilities can be supplemented by resources of the Canadian Coast Guard, by resources from other regions, or internationally though the International Convention on Oil Pollution Preparedness, Response and Cooperation.
Transport Canada said that most of Canada's spill response capability is provided by industry response organizations, certified by Transport Canada, that provide response services for their member stakeholders. These services include operational spill response, spill management, government and stakeholder liaison, and access to technical advisors. It said that these response organizations must demonstrate the ability to respond to marine oil spills of up to 10,000 tonnes within prescribed time standards and operating environments. It said that response organizations are certified every 3 years by Transport Canada. Vessels such as those proposed for use by Northern Gateway must have an arrangement with a response organization to provide marine oil spill response services when requested by a member, the Coast Guard, or a lead government agency.
The Panel received a letter of comment from the Western Canada Marine Response Corporation, currently the only certified response organization on the west coast of Canada. The letter outlined the Western Canada Marine Response Corporation's role, responsibilities, response capability, and state of readiness, including its access to external resources through mutual aid agreements and its Fishers Oil Spill Emergency Team, and its training program which is monitored by Transport Canada.
Transport Canada said that the oil spill response regime in Canada is based on the polluter-pay principle. It said that, for a spill from a ship, the ship owner is the responsible party and is liable for reasonable costs as outlined in the Marine Liability Act. It said that responsible parties generally take responsibility for a marine spill and identify one person to act as the Incident Commander to lead the response to the incident. If the responsible party is unknown, unwilling, or unable to respond, the Canadian Coast Guard would take over and direct the response, working with the response organization.
Transport Canada said that other agencies can also be involved in marine spill response and planning. It said that the Canadian Coast Guard acts as the Federal Monitoring Officer and Lead Agency for all ship-source marine spills, in addition to maintaining its own spill response preparedness capacity. The Province of British Columbia can also have a role in marine spill response if a spill threatens or impacts shorelines or wildlife.
Environment Canada's main responsibility related to ship-source oil spill response is to support the Canadian Coast Guard by providing advice through the Regional Environmental Emergencies Team. The Regional Environmental Emergencies Team is a multi-agency, multi-disciplinary group that provides consolidated and coordinated environmental advice, information, and assistance in the event of an environmental emergency. Federal, provincial, and municipal government departments, Aboriginal communities, private sector agencies, and local individuals are represented. Environment Canada and the British Columbia Ministry of the Environment co-chair the Regional Environmental Emergencies Team program in British Columbia.
Oil pollution prevention and emergency plans
Transport Canada said that, in addition to the requirements for an arrangement with a response organization, the Canada Shipping Act, 2001 and associated regulations require vessels, such as those proposed for the project, to have a Shipboard Oil Pollution Emergency Plan. These ship-specific plans help shipboard personnel deal with unexpected discharges of oil. Transport Canada said that their main purpose is to set in motion the necessary actions in a structured, logical, and timely manner to stop or minimize the discharge and to reduce its effects.
Transport Canada said that the operator of an oil handling facility, such as that proposed by Northern Gateway, must also have an Oil Pollution Prevention Plan and an Oil Pollution Emergency Plan in place. It said that equipment and resources must be available on-site to immediately contain and control an oil spill incident at the facility. It said that the company must also have an arrangement with a response organization.
Several parties, including Ms. Brown, Mr. Cullen, Ms. Wier, Living Oceans Society, Mr. Donaldson, Gitxaala Nation, and the Government of Canada, filed or referred to two reports from the Office of the Auditor General of Canada which have relevance to the marine shipping component of the project. The 2010 and 2011 reports discussed oil spills from ships, and transportation of dangerous products, respectively.
The Canadian Coast Guard and Transport Canada said that the federal Interdepartmental Marine Pollution Committee, co-chaired by the Canadian Coast Guard and Transport Canada, was formed in 2010. The Committee is addressing issues raised in the Office of the Auditor General's audit on oil spills from ships. The Committee has developed an integrated Management Action Plan to address recommendations and has initiated a process to report on progress.
In response to questions from Coastal First Nations, the Haisla Nation, Coalition, and the Panel, Transport Canada said that, in response to the recommendations of the Office of the Auditor General's 2010 report, it was developing a Canada-wide process to assess risks of oil spills from ships. Transport Canada had completed the scoping stage of the project and had consulted with its federal partners. A risk assessment of ship-source oil spills would then be coordinated interdepartmentally. This would include risk identification, risk analysis, and risk evaluation. The projected completion date for the work is the end of 2013. Transport Canada said that a related component of the risk assessment was the creation of a Tanker Safety Expert Panel by the Government of Canada. Transport Canada said that it had reviewed and updated its Environmental Prevention and Response National Preparedness Plan in November 2011 in response to the Office of the Auditor General's report.
In response to questions from Ms. Brown and the Coastal First Nations, Transport Canada said that the Government's Economic Action Plan 2012 provides funding for a variety of ship safety and spill response measures including enhancing the existing tanker inspection regime, legislative changes, updating navigational products, creation of the Tanker Safety Expert Panel, and research on marine pollution risks.
Northern Gateway said that, on a worldwide basis, all data sets show a steady reduction in the number and size of oil spills since the 1970s. This decline has been even more apparent since regulatory changes in 1990 following the Exxon Valdez oil spill, which required a phase-in of double-hulled tankers in the international fleet. No double-hulled tanker has sunk since 1990. There have been five incidents of double-hulled tankers that have had a collision or grounding that penetrated the cargo tanks. Resulting spills ranged from 700 to 2500 tonnes. Northern Gateway said that there have been no significant spills resulting from structural failure of a double-hulled tanker. In response to questions from the Gitxaala Nation, Northern Gateway said that every large spill dating from 1970 has been from a single hull tanker.
Northern Gateway said that the regulatory environment and the tanker industry are subject to continuous improvement in the areas of vessel construction and operation. Examples include:
In light of these changes and potential future improvements, Northern Gateway said that it is likely that the number of spills will continue to decline in the future.
The Haisla Nation said that, although there have been no major spills since the Exxon Valdez spill in Prince William Sound, there were 111 reported incidents involving tanker traffic in Prince William Sound between 1997 and 2007. The three most common types of incidents were equipment malfunctions, problems with propulsion, steering, or engine function, and very small spills from tankers at berth at the marine terminal. The Haisla Nation said that, in the absence of state-of-the-art prevention systems in Prince William Sound, any one of those incidents could have resulted in major vessel casualties or oil spills.
The Government of Canada and Northern Gateway said that the Government of Canada had recently announced regulatory improvement initiatives in areas related to:
Northern Gateway and Transport Canada summarized the marine spills liability and compensation regime in Canada. This regime is governed under the Marine Liability Act and associated regulations. The Marine Liability Act, amended in 2009, is administered by Transport Canada. Based on the polluter-pays principle, the Marine Liability Act is the principal legislation dealing with the liability of ship owners and vessel operators in relation to passengers, cargo, pollution, and property damage. Transport Canada said that the Marine Liability Act establishes uniform rules on liability and compensation by balancing the interests of ship owners and other parties involved in maritime accidents. There are various regimes available to pay for cleanup and compensation costs, such as ship owners' insurance and domestic and international funds. A single oil pollution incident may draw compensation from multiple regimes. Between ship owner insurance and other federal legislation and international agreements, there is approximately $1.35 billion worth of coverage. Transport Canada said that this is one of the largest amounts of compensation available in the world.
Table 7.1 is based on Transport Canada's written evidence.
Table 7.1 Financial responsibility and compensation available for tanker incidents
|Persistent Oil Spill (crude oil, fuel oil, etc. carried in tankers, e.g., dilbit)||Bunker Oil Spill (fuel used to propel or operate non-tankers, e.g., escort tugs)||Non-Persistent Oil Spill (refined or volatile oil or hydrocarbon, e.g., condensate)|
|Shipowner strictly liable under the 1992 Civil Liability Convention Compulsory insurance certified by states Separate and higher limits of liability (approx. $145 million) Access to international compensation funds (approx. $1.05 billion):
||Shipowner strictly liable under the 2001
Bunkers Convention Compulsory insurance certified by states General limits of liability (approx. $90 million) Access to domestic compensation fund:
|Shipowner only liable under Marine Liability Act No compulsory insurance General limits of liability (approx. $90 million) Access to domestic compensation fund:
|Total amount of compensation available: Approximately $1.35 billion||Total amount of compensation available: Approximately $250 million||Total amount of compensation available: Approximately $250 million|
Transport Canada said that the liability of tankers carrying persistent oils is governed by the International Convention on Civil Liability for Oil Pollution Damage, 1992. This Convention imposes strict liability on the ship owner for oil pollution from its ship, subject to a limited number of defenses. In exchange, ship owners are entitled to limit their liability to a maximum amount linked to the tonnage of the vessel. To ensure that victims are protected, the Convention requires that ship owners carry insurance to cover the full amount of their liability.
Transport Canada said that the maximum liability of a ship owner or its insurers in respect of an oil spill from a tanker is approximately $145 million. Northern Gateway said that, if the spill is attributable to the ship owner's gross negligence, or if the ship owner was reckless and had knowledge that the damage which occurred would probably result, this limitation of liability does not apply and the ship owner's liability would be unlimited. In the case of a condensate spill from a tanker, there is no liability cap.
Transport Canada said that the International Oil Pollution Compensation Funds is an international organization of which Canada has been a member since 1989. This organization manages two compensation funds (1992 Fund and Supplementary Fund) created through two International Marine Organization conventions that Canada ratified and adopted through Part 6 of the Marine Liability Act.
Transport Canada indicated that the first convention is the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992. This establishes the 1992 Fund, which is the second tier of compensation in the event of a tanker spill of persistent oil. The purpose of the 1992 Fund is to provide additional compensation beyond the ship owner's liability discussed above.
Transport Canada said that the second convention is the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, which establishes the Supplementary Fund, an optional third tier of compensation under the International Oil Pollution Compensation Funds system.
Transport Canada indicated that the International Oil Pollution Compensation Funds cover a range of loss and damage, including reasonable costs for preventive measures to minimize or prevent a spill, cleanup, property damage, environmental damage, quantifiable economic losses, such as in the fisheries or tourism sectors, and post-spill monitoring and studies. It covers actual losses and reasonable expenses that can be directly linked to the pollution incident. All claims for compensation, whether made to the ship owner's insurer or the International Oil Pollution Compensation Funds follow the same principles:
In combination with the ship owner's liability, the 1992 Fund, and the Supplementary Fund, the total amount of compensation available for a tanker spill is $1.2 billion for a single incident.
Transport Canada said that, in addition to the international funds, Canada has a domestic fund called the Ship-source Oil Pollution Fund, which is set out in Part 7 of the Marine Liability Act, and which can provide an additional tier of compensation to victims of oil spills. This fund was created from levies paid by receivers and importers of oil in Canada.
The Ship-source Oil Pollution Fund covers pollution damages from any type of oil and any type of ship, including mystery spills, if it can be proven that the spill originated from a ship. The current maximum liability for the fund is approximately $158 million for a single incident, which would apply to spills noted in Table 7.1.
Transport Canada indicated that, when processing claims for compensation, the Ship-source Oil Pollution Fund follows the procedure set out in Part 7 of the Marine Liability Act. The admissibility of claims to the fund is the same as the criteria established for the shipowner's liability and the International Oil Pollution Compensation Funds. Section 107 of the Marine Liability Act specifies the treatment of claims for loss of income, including subsistence fishing or hunting.
Various intervenors, including the Kitsumkalum Indian Band, Coastal First Nations, United Fishermen and Allied Workers Union, and the Gitxaala First Nation expressed concerns that adequate compensation would not be assured in the event of a marine spill.
The Gitxaala Nation asked Northern Gateway who would be responsible for cleanup costs and compensation payments if costs associated with a spill exceed the amounts available under the various funds. In response, Northern Gateway said that there has never been a spill in Canada exceeding the compensation available under the various regimes. It also said that, since the establishment of the International Oil Pollution Compensation Supplementary Fund, there has never been a spill globally that has exceeded compensation available under the international funds. The Gitxaala Nation questioned Northern Gateway on the type of compensation, if any, that would be available to compensate Gitxaala Nation and its members for indirect or non-economic losses in the event that a spill impacts their traditional marine uses or their social, cultural, or psychological wellbeing. Northern Gateway indicated that the Gitxaala Nation and its members would be entitled to be compensated for all proximate losses reasonably foreseeable as a result of a spill. Damages for indirect or non-economic loss are recoverable through general damages awards.
The Gitxaala Nation questioned Northern Gateway on the sources of information that would be used to determine the marine harvests landed by traditional users, for the purpose of calculating compensation. Northern Gateway responded that the company would be prepared to work with the Gitxaala Nation and other participating coastal First Nations and appropriate government agencies to quantify harvests and the quality of harvested foods and other resources, with a focus on the Confined Channel Assessment Area. Information on landed harvests would build on information contained in the Gitxaala Use Study. Harvest quality, and some information on quantity, would also be obtained through the Environmental Effects Monitoring Program.
The Gitxaala Nation questioned Northern Gateway on the appropriateness of the cost benefit analysis modelling that the company conducted for costs related to clean up and environmental damages. It also asked whether the company fully considered local data within a First Nation area, specifically the Gitxaala Nation. Northern Gateway said that it did not give special weight to costs imposed on Aboriginal communities versus other communities in Canada. Northern Gateway indicated that the cost benefit analysis was used to compare construction and operating costs with the costs of a potential spill. Northern Gateway said that it had confidence in the cost estimates generated by the cost benefit analysis because the analysis took into account data from tanker and ship-based spills that have occurred worldwide. Northern Gateway said that estimated costs for a specific incident would be based on best available evidence. The company provided what it described as a conservatively high estimate of $15,000 per barrel for clean up costs and $22,500 per barrel for costs related to environmental damage.
Coastal First Nations expressed concerns that Northern Gateway had not included in its spill estimate costs passive use values and damage assessment for things such as loss of ecological values, social problems associated with a spill, costs of strained community relationships, losses related to homes, or uncertainties associated with the effects. Coastal First Nations said that the use of passive values could provide monetary estimates of what people are willing to pay to prevent an oil spill through mitigation measures. Northern Gateway's expert said that his experience with trying to monetize passive use values was that the numbers tended to be low and that the amount that could be monetized through modern techniques is very small. The company said that, for the Enbridge Northern Gateway Project, these values are expected to be low.
Coastal First Nations estimated that the total annual benefits from marine activities within Coastal First Nations traditional territories that could be impacted by a spill range from $28.9 billion to $29.9 billion. In response to Northern Gateway questioning, Coastal First Nations said that $28 billion of this total estimate was for non-market values including ecological services such as nutrient cycling. It said that the value of ecological services is difficult to estimate and that the purpose of the work was to give a general order of magnitude as to the value of ecological services. It said that, although these values are important and should be considered, they should not be utilized for project-specific decision making and that more detailed analysis to fully understand such costs would be required.
The United Fishermen and Allied Workers Union questioned Northern Gateway and the Government of Canada on compensation for commercial fishers. Northern Gateway committed to establishing a Fisheries Liaison Committee which, among other issues, would address compensation for both routine effects of the project as well as oil spill effects. Northern Gateway expected that it would work with the Fisheries Liaison Committee to document the type of catch and fishing efforts over the first 5 years of the project, using Fisheries and Oceans Canada catch-effort data. The information collected would help to quantify losses should a spill ever occur. Northern Gateway said that it would be responsible for any damages directly attributable to its operations.
The National Energy Board Act addresses malfunctions, accidents, and emergency preparedness and response for facilities under National Energy Board jurisdiction. In the case of the project, this includes the two pipelines and the Kitimat Terminal to the tanker connection point.
The evidence indicates that there is a comprehensive regulatory regime in place related to pipeline and terminal design, safety, spill prevention, and spill preparedness and response. Northern Gateway would be subject to this regime. The regulatory functions of the National Energy Board, including those following the issuance of any certificate under the National Energy Board Act, would address compliance with conditions set out by the Panel.
Marine shipping navigation, safety, and spill prevention are not under the jurisdiction of the National Energy Board. Marine shipping legislation and associated regulations, standards, programs, and policies fall primarily under the jurisdiction of Transport Canada. Other departments, such as Canadian Coast Guard, also have a role. International organizations, such as the International Maritime Organization, play a role in the development of marine shipping safety regulations and standards. Any refinements or additions to Canada's marine shipping regulatory regime would be under the jurisdiction of these authorities as they have the appropriate mandate, regulatory authority, and expertise.
The evidence indicates that there is a comprehensive regulatory regime in place in Canada related to marine shipping navigation, safety, spill prevention, and spill preparedness and response. The regime addresses various elements related to ship design, ship operation, navigational safety, inspection, compliance, enforcement, and oil spill response planning.
Northern Gateway said that the regulatory environment for the oil tanker industry is subject to continuous improvement, and provided several examples. These changes have led to a substantial reduction in the number and size of oil tanker spills since the 1970s and, in particular, since 1990. Northern Gateway has chosen to exceed regulatory requirements through its marine voluntary commitments in relation to navigation, safety, and oil spill preparedness and response planning. These commitments are discussed in Sections 7.3 and 7.4.
Transport Canada confirmed that there are no provisions in Canadian marine shipping legislation that would make Northern Gateway's marine voluntary commitments, or the findings of the TERMPOL Review Committee, mandatory or enforceable. The Panel finds that these voluntary commitments should be mandatory and enforceable as conditions under any certificates which may be issued under the National Energy Board Act. These conditions would be enforced by the National Energy Board.
The Panel notes that financial responsibility and compensation associated with marine shipping spills is addressed under the Marine Liability Act and is under the authority of the Government of Canada. The Panel understands that the marine shipping financial responsibility and compensation regime is intended to balance the need for appropriate compensation with the need for maritime commerce. The regime is subject to both national and international input.
The Panel finds that spill costs are unknowable in advance and would depend on a number of factors associated with a spill. Liability for any spill along the pipeline route, and from the Terminal into marine water, before the product is loaded in the tanker, would be covered by the liability condition imposed by the Panel.
The Panel notes that, if the spill is attributable to the ship owner's gross negligence, or if the ship owner was reckless and had knowledge that the damage which occurred would probably result, limitation of liability does not apply and the ship owner's liability would be unlimited. Assuming no gross negligence or reckless actions, the Panel notes that a ship owner or its insurers would have to provide up to approximately $145 million as a maximum liability for an oil spill. The Panel notes that there is no liability cap in the case of a condensate spill from a tanker.
Based on the evidence, the Panel finds that there is an existing regulatory regime to provide for costs associated with spills in marine waters. The Panel notes that Transport Canada and Northern Gateway said that a total of $1.35 billion would be available from the ship owners maximum liability, the Ship-Source Oil Pollution Fund, the 1992 Fund, and the Supplementary Fund, for any releases from tankers into marine waters, whether within the Confined Channel Assessment Area, the Open Water Area, or beyond.
Many parties questioned whether a large marine oil spill could result in costs which exceed the current amount available of approximately 1.35 billion dollars. The Panel notes the evidence that, since the establishment of the Supplementary Fund in 1992, there have been no spills throughout the world where the total funds available were insufficient to cover all costs and losses. In the event of spill costs that exceeded available funds, the money would have to come from corporate entities or governments.
This regime is not regulated by either the National Energy Board or Canadian Environmental Assessment Agency and, therefore, the Panel does not express a view as to the sufficiency of the current amount available. The Panel notes that any changes to the marine spill compensation framework would be handled by the regulatory bodies that are responsible for the current regimes.
Many participants told the Panel that an oil spill could potentially cause permanent ecological, social, and cultural damage. Northern Gateway said that large spills would be likely to cause significant adverse environmental effects that are generally reversible through mitigation and natural recovery. It said that natural recovery occurs after terrestrial, freshwater, and marine oil spills. It said that recovery time would depend on the local environment, species affected, and other factors such as spill volume and characteristics of the spilled product.
Northern Gateway said that spills from pipelines, the Kitimat Terminal, or tankers could result in petroleum products being released onto land, into water and onto shorelines, and into the air through evaporation. A condensate spill would result in acute effects and would be toxic to biota but would typically tend to evaporate from water and land relatively quickly. Diluted bitumen and synthetic crude would result in toxicological and physical effects and would be more persistent, likely causing both acute and chronic effects.
Northern Gateway said that the effects of hydrocarbons on terrestrial and freshwater organisms are typically influenced by a combination of physical and biological factors, including:
Northern Gateway assessed the potential consequences of a dilbit or condensate pipeline spill in different locations including agricultural land, a fen wetland, a low gradient watercourse (Crooked River), and a high gradient watercourse (Hunter Creek). It said that dilbit and condensate represent the two extremes of products that would be shipped on the project, in terms of physical and chemical properties. Diluted bitumen is a viscous, persistent, moderately heavy oil, and condensate is a low-viscosity, volatile fluid that weathers rapidly.
Northern Gateway summarized potential environmental effects of a pipeline spill as follows:
Northern Gateway also prepared an ecological and human health risk assessment for the pipeline component of the project. It said that the work was completed to respond to intervenor concerns about long-term environmental, resource, and health effects of pipeline spills.
The pipeline ecological and human health risk assessment modelled potential ecological and human health effects resulting from a hypothetical, instantaneous, full-bore pipeline rupture releasing diluted bitumen, synthetic crude, or condensate at four watercourse locations along the pipeline route. The company said that the volumes and locations of the hypothetical releases were derived from its semi-quantitative risk assessment.
Each spill was evaluated for high and low river flow scenarios, broadly representing summer and winter river flow. The simulated watercourses included Chickadee Creek, (which flows into the Athabasca River), Crooked River (which flows into Davie Lake), the Morice River, and the Kitimat River. These watercourses represented a range of gradient, flows, watersheds, discharge locations, downstream resources, and users. The modelled scenarios also reflected specific concerns, such as locations of interest, expressed by the public or Aboriginal groups.
Northern Gateway said that the risk assessment model considered changes due to weathering of physical and chemical properties of the spilled products. Chemicals of potential concern, including monocyclic and polycyclic aromatic hydrocarbons, were also tracked in the simulated spills.
Northern Gateway said that the primary focus of the ecological risk assessment was to quantify the risk of acute and chronic effects to aquatic biota. It said that the assessment was conducted according to accepted methods and guidance published by regulatory agencies, including the Canadian Council of Ministers of Environment and the United States Environmental Protection Agency.
Assessment of acute ecological risk focused on the short-term effects (7 to 50 days) for each spill scenario, with natural recovery (no spill cleanup). The model ran until it indicated that floating product was no longer present in the modelled waterbody. Product transport, product fate, and mortality of key indicator species were estimated. The products were relatively unweathered at the end of the acute effects simulations. Large volumes of product would be transported downstream in the receiving river or stream.
The chronic ecological assessment began after the acute exposure assessment ended, and extended for up to 2 years post-spill. Northern Gateway said that the chronic ecological assessment also addressed:
Northern Gateway identified sources of uncertainty in the pipeline ecological and human health risk assessment and noted the following:
Northern Gateway said that the effects of a spill are influenced by the characteristics of the product, environmental conditions, and the precise locations and types of organisms present. The goal of the pipeline ecological and human health risk assessment was not to forecast every situation that could potentially occur, but to describe a range of possible consequences to inform planning.
Summary of acute effects assessment and results
Northern Gateway assessed the acute (immediate or short-term) effects of a pipeline spill using a model called the Spill Impact Model Application Package (SIMAP). The model simulated potential spill effects on a variety of aquatic organisms, including fish, and on wildlife such as birds, mammals, and reptiles. The model estimated amounts of the hydrocarbon product and chemicals contained in the atmosphere, water column, and sediments, and on the water surface and shorelines. It also simulated downstream transportation of the product over time.
Northern Gateway said that simulated acute effects differed between scenarios. Flow conditions and product type had important effects on the outcomes. Other findings included:
Summary of chronic effects assessment and results
Northern Gateway used acute effects assessment results to assess potential chronic (long-term) effects, focusing on the fate of oil that stranded on shorelines or deposited to river sediments. The company said that, although products transported downstream beyond the area modelled would also have the potential to cause effects, they would be more dispersed by then and would represent a lower level of risk than the more concentrated accumulations upstream.
Northern Gateway assessed chronic effects on shoreline soils, sediment, and water quality, including sediment pore water, plants, invertebrates, fish, and wildlife. The chronic assessment of spill effects assumed that some shoreline cleanup activity would be completed.
The predicted product concentrations were compared against toxicity benchmark values to assess the potential for chronic effects. Northern Gateway said that, when the ratio of predicted value to benchmark value is less than one, adverse effects are not considered to be likely due to the conservative assumptions built into the analysis. Model results varied depending on the key indicator assessed. Most ratios generated in the modelled scenarios were less than one.
River channel characteristics and flows affected the model outcomes. Effects tended to be more severe in smaller watercourses like Chickadee Creek, and in the slow-moving Crooked River, where organic soils and fine-grained sediments were predicted to trap and retain hydrocarbons. Despite the presence of fine-grained sediments in the Kitimat River estuary, the model predicted very light deposition of hydrocarbons there. Oiling of shorelines was predicted to cause acute effects on shoreline plant communities and soil invertebrates. Impacted shorelines were predicted to recover quickly with appropriate cleanup.
Northern Gateway said that, although fish and benthic invertebrates would be subject to acute effects after the initial phase of a spill, hydrocarbon concentrations in river water were expected to decrease substantially below the chronic effect thresholds for fish and other aquatic biota. The time frame for this decline could range from weeks to over 2 years depending on circumstances and spill location.
The company said that, where oil deposited to sediment, predicted hydrocarbon concentrations and total polycyclic aromatic hydrocarbon concentrations in sediment pore water were, for the most part, unlikely to cause adverse effects to developing fish eggs. In gravels most likely to be used by salmonid fish as spawning habitats, expected hydrocarbon concentrations in sediment pore water were below established toxicity benchmarks.
Northern Gateway concluded that conditions harmful to developing fish eggs could occur for a period of weeks following a major oil spill. It said that hydrocarbon concentrations would rapidly decline, due to weathering, to concentrations below effects thresholds. It said that the most likely outcome is that a portion of the eggs or larvae of a single year-class of fish could be lost, but that recovery would occur in subsequent years.
Northern Gateway said that a full-bore pipeline rupture would have long-term effects. Weathered oil residues would likely persist in the environment for years to decades. Weathered residues would be less toxic than fresh oil, and were not predicted to cause significant effects.
Northern Gateway said that the effects of a hydrocarbon spill would be reversible and that the environment would recover with time. It said that appropriate response and remediation activities can substantially reduce the time required for recovery.
Summary of pipeline ecological and human health risk assessment
Northern Gateway said that the spill scenarios modelled in the pipeline ecological and human health risk assessment were unlikely to occur. It said that, if they occurred, the potential adverse environmental and human health effects may be significant. Potential spill behavior and outcomes are likely to be highly incident-specific and influenced by many factors including:
Hydrocarbons with higher concentrations of volatile organic compounds and total polycyclic aromatic hydrocarbons would generally be expected to create more toxic effects.
Northern Gateway said that, in general, spill effects would be more significant in slow flowing watercourses with fine-grained sediments than in fast flowing watercourses with coarse-grained substrates. Effects to rivers or other watercourses would vary considerably, with effects extending more than 50 kilometres downstream.
Northern Gateway said that effects of spills on land would be limited. It said that, as the movement of oil on land tends to be slower than in aquatic environments, response strategies on land can be targeted and implemented more readily. Remediation of terrestrial spills would generally be completed to applicable environmental quality standards for the local land use.
Northern Gateway said that fish and aquatic biota, wildlife, and vegetation would be affected during the acute phase of the spills evaluated. After the acute phase of the spill the hydrocarbons in the river water would decline to the point that they would not be expected to create chronic adverse effects to fish and other aquatic biota. Northern Gateway said that local populations of smaller animals and waterfowl were more likely to experience adverse chronic effects than wide ranging species such as the grizzly bear or bald eagle. It said that, while the presence of residual, weathered hydrocarbons could persist for an extended period of time, adverse environmental effects would not be expected to continue beyond 1 to 2 years and are expected to be reversible, especially with appropriate response and remediation activities.
Intervenor questions on the pipeline ecological and human health risk assessment
In response to the Province of British Columbia, Northern Gateway said that it had broken new ground in environmental assessment, since the modelling of chronic effects from oil spills is something that has rarely been done before. It said that the typical focus has been on acute effects and emergency response, with less effort to quantify chronic effects. It said that it had used state-of-the- art models and conservative approaches throughout the pipeline risk assessment.
The Haisla Nation submitted a review of the pipeline ecological and human health risk assessment. It said that there was the need for more detailed site-specific and situation-specific information in the Kitimat River. It said that the pipeline risk assessment may underestimate risks because it does not include sufficient site-specific physical, chemical, biological, and ecological data.
The Haisla Nation asked how mass balance models can reliably quantify the fate of a hydrocarbon at all times without the use of real oil spill data. Northern Gateway said that any real spill of hydrocarbon would be unique, with many site specific factors affecting transport and fate of hydrocarbon components. It said that mass balance equations and models are the only way to make defensible predictions about potential exposures and risks for hypothetical spills. The Haisla Nation noted the potential for a single spill to affect up to three generations of salmonids (adults, juveniles, larvae, or eggs) present in the Kitimat River, causing the loss of 1 year's reproduction.
Participants asked about the origin of data used in the pipeline ecological and human health risk assessment. Northern Gateway said that typical modelling practice is to use as much site-specific data as possible, and then augment those data using professional judgement based on similar rivers and regions. The company said that its approach was conservative. As an example, it said that it had assumed high concentrations of suspended sediment in the water in some scenarios, which could cause some oil to sink during the simulation.
The Northwest Institute for Bioregional Research, the Province of British Columbia, and the Haisla Nation questioned how stream flow rates were calculated and incorporated into the model. In response, Northern Gateway said that it used the maximum mean monthly flows and minimum mean monthly flows to represent the high and low flow rates, respectively. Northern Gateway said that the data for each river came from a variety of different sources, including Environment Canada. It recognized that there can be annual, seasonal, and spatial variation in stream flows and velocities. The company said that it had modelled the rivers at representative high and low flows to represent typical annual variation in flows.
Several parties, including the Haisla Nation, questioned Northern Gateway regarding the applicability of the SIMAP model to rivers, and its suitability for ecological risk assessment purposes. Northern Gateway said that the SIMAP model has been used in hundreds of Natural Resource Damage Assessments in the United States for both riverine and marine environments. The Northwest Institute for Bioregional Research and the Friends of Morice-Bulkley asked whether Northern Gateway had explicitly validated the SIMAP model for northern interior British Columbia salmon rivers such as the Morice River and Kitimat River. Northern Gateway responded that, as modelling attempts to simplify complex natural processes, it is not necessary to specifically validate a model against the specific river being examined. It said that SIMAP has been used to simulate a wide range of river systems, and that the company appropriately used local data as model inputs to characterize the rivers that were assessed.
The Friends of Morice-Bulkley said that the Sutherland River contains provincially significant fish habitat, as it is the spawning and rearing channel for more than 80 per cent of Babine Lake rainbow trout. It wondered whether an uncontrolled spill could cause extensive acute toxicity of juvenile rainbow trout or developing eggs in the river. Northern Gateway said that such a situation could occur, and was the reason it was focused on preventing such an occurrence through its risk based design, including thicker pipe and isolation valves at key watercourses. The company said it had been very clear that adverse and significant acute and chronic effects could result from a spill, depending on circumstances, although the probability of such events occurring is very low. The pipeline risk assessment and other information were used to assess such effects.
Northern Gateway said that total polycyclic aromatic hydrocarbon concentrations in the representative petroleum products it modelled are either similar to, or less than, other crude oils including those derived from Alberta and the Alaska North Slope. The Alaska North Slope was the source of the crude oil spilled by the Exxon Valdez.
The Haisla Nation questioned Northern Gateway on the potential toxicity of polycyclic aromatic hydrocarbons, and how they were considered in the pipeline risk assessment. Northern Gateway said it had modelled the acute toxicity of numerous compounds, including polycyclic aromatic hydrocarbons. It said that, in general, potential toxicity increases with increasing polycyclic aromatic hydrocarbon levels, and that other factors must also be considered.
The Haisla Nation said that the concentrations of total polycyclic aromatic hydrocarbons that cause chronic toxicity range from about 1 microgram per litre to more than 100 micrograms per litre. It said that toxic effects range from induction of non-lethal enzymes, all the way up to mortality. Northern Gateway said that its assessments indicated that, even if total polycyclic aromatic hydrocarbon concentrations in the modelled petroleum products were much higher, potential effects would be at the lower end of the range described by the Haisla Nation.
In response to Haisla Nation questions about the range of petroleum products to be shipped, Northern Gateway said that products with much higher total polycyclic aromatic hydrocarbon concentrations than those modelled could be shipped on the pipeline. Northern Gateway said that this would not change the conclusion that a large spill would result in significant adverse environmental effects.
Northern Gateway conducted an ecological risk assessment for an accidental release of 250 cubic metres of representative diluted bitumen and condensate in the marine environment at the Kitimat Terminal, under summer inflowing wind conditions. The size of the simulated spill is the maximum credible release volume estimated for tanker loading or unloading at the terminal, as determined in Northern Gateway's marine shipping quantitative risk analysis. Northern Gateway said the risk assessment was conducted according to accepted ecological risk assessment methodologies and guidance published by regulatory agencies, including the Canadian Council of Ministers of Environment and the United States Environmental Protection Agency. All scenarios were assessed without mitigation measures. Northern Gateway said that booms would be placed around the tanker during actual oil loading operations to contain any spillage that might occur.
The marine terminal ecological risk assessment addressed a number of chemicals of potential concern, including, but not limited to, monocyclic aromatic hydrocarbons and polycyclic aromatic hydrocarbons. A marine water quality model and a marine sediment quality model were used to calculate chemical exposure levels for biota in water and sediment. The marine water quality model simulated oil weathering and fate, including evaporation, emulsification, dispersion, and sinking to subtidal sediments.
The study assessed acute toxicity to marine algae, fish, and invertebrates in the water column. Chronic effects to subtidal benthic invertebrates, such as crabs and bivalves exposed to chemicals of potential concern in sediment, were also assessed. Potential chronic effects resulting from oil stranded on shorelines were assessed qualitatively based on experience gained from the Exxon Valdez oil spill.
Acute effects to organisms in the water column, in certain areas of Kitimat Arm, were predicted for the condensate spill. Northern Gateway said that a condensate spill would be unlikely to cause chronic effects to benthic invertebrates, and that recovery of the intertidal zone was predicted to be complete within 2 years.
Dilbit was predicted to strand on the shoreline near the terminal and near Kitamaat Village across Kitimat Arm. Northern Gateway said that a dilbit spill would not be likely to cause acute toxicity to organisms in the water column or on the seabed. Intertidal biota, birds, and mammals contacting the oil at the water surface would be most affected by the acute phase of a dilbit spill. It said that, due to the relatively small spill volume and duration of the spill, effects on mammals and birds would be unlikely or limited. The chronic assessment did not predict chronic effects on subtidal benthic invertebrates, but showed longer term effects for the shoreline and subtidal sediments.
Northern Gateway said that, as diluted bitumen contains a large fraction of heavy and persistent tarry material, some weathered material would be stranded on shoreline sediments and rocks. The company said that some small pockets of residual dilbit might remain buried in gravel or rocky substrates for several years, although the presence of these persistent pockets would not necessarily inhibit restoration of adjacent intertidal habitat. Northern Gateway said that recolonization of damaged habitat would be quite rapid, due to the presence of nearby undamaged habitat. It said that recovery of the intertidal zone would be complete within about 2 to 5 years.
In response to questioning from the Province of British Columbia, Northern Gateway said that, although the model potentially allows an oil to weather to a state where it may sink, the dilbit product modelled in the assessment is not likely to sink due to weathering alone.
Northern Gateway said that risk assessments are conducted following conservative assumptions, which tend to overestimate exposure and risk. It said that:
Northern Gateway said that the ecological risk assessment was based on measured data, rather than assumed data. It used, to the extent practical, conservative assumptions in the exposure and hazard assessments. Northern Gateway said that it is not likely to have underestimated the risk of adverse effects on the marine environment.
At the request of the Panel and Environment Canada, Northern Gateway ran mass balance and spill trajectory modelling under winter outflowing wind conditions. The company said that the altered conditions did not alter the conclusions of the marine terminal ecological risk assessment.
Northern Gateway said that the effects of a large oil spill from a tanker would likely be significant. Northern Gateway said that the potential effects of a tanker spill would depend on numerous factors, including type of oil, volume spilled, season, and environmental receptor.
In response to questioning from the Province of British Columbia, Northern Gateway said that, relative to the Confined Channel Assessment Area, a spill in the Open Water Area would be much more affected by environmental factors such as wind and waves. Spills in open water would be more likely to be naturally dispersed and degraded. In response to questions from the United Fishermen and Allied Workers Union, Northern Gateway said that a spill in the Open Water Area would be unlikely to affect fish, due to rapid dispersion and dilution of the oil.
Northern Gateway said that marine organisms likely to come in direct contact with oil include birds, fish (primarily those spawning and rearing in nearshore areas), plankton, mammals, and intertidal invertebrates and vegetation. Terrestrial biota along the shoreline might also come into contact with oil. Northern Gateway said that viscous products such as dilbit would be less likely than lighter oils to penetrate into shoreline sediments. The company said that human activities such as traditional or subsistence harvesting, commercial fishing, and recreational activities are also likely to be adversely affected by a large spill from a tanker.
The Council of the Haida Nation questioned Northern Gateway on potential spill-related effects on three species of particular importance to the Haida Nation: black seaweed, Dungeness crab, and razor clams. Northern Gateway said that its assessment of potential spill effects had considered potential effects on all these species.
Northern Gateway said that black seaweed is a rapidly growing, transitory algae that, in past spill events, had been shown to be relatively insensitive to toxic effects, although smothering had occurred. It said that black seaweed recovery after spill events had typically been quite rapid, in the range of 1 to 2 years or less
Northern Gateway said that, although crabs are known to be sensitive to toxic effects, they have been shown to recover within 1 to 2 years following a spill such as the Exxon Valdez incident. Northern Gateway said that Dungeness crab was a key indicator species in its assessment of spill effects.
Northern Gateway said that potential effects to razor clams are not as well studied. It said that sediment toxicity studies after the Exxon Valdez spill did not suggest significant effects on benthic invertebrates. Following the Exxon Valdez and Selendang Ayu oil spills in Alaska, food safety closures for species such as mussels, urchins, and crabs were lifted within 1 to 2 years following the spill.
In response to questioning from the Council of the Haida Nation regarding potential spill effects on herring, Northern Gateway said that herring were a key indicator species in its spill assessment. Northern Gateway said that the Exxon Valdez spill did not appear to cause population-level effects on Prince William Sound herring.
In response to a question from the Council of the Haida Nation on depressed Haida Gwaii herring stocks, Northern Gateway said that depressed herring populations were not unique to Haida Gwaii. It said that herring populations all along the coast of British Columbia were exhibiting similar trends.
Some intervenors expressed concerns about the potential for an ocean oil spill to move into tidal estuaries and rivers such as the Kitimat, Nass, and Skeena Rivers. The Haisla Nation specifically enquired about the potential for tides to carry oil far enough up the Kitimat River to contaminate eulachon spawning habitat.
Northern Gateway said that such effects would be unlikely due to a natural protective barrier caused by the interface, known as a density front, between fresh water and salt water. The company indicated that a density front typically prevents movement of surface oil from salt water to a freshwater environment, although its effectiveness would depend on environmental conditions at the time. In response to questions from the Heiltsuk Nation, Northern Gateway further clarified that the strong outflow of the Kitimat River prevents tidal influence from going very far upstream.
Northern Gateway completed an ecological risk assessment of a scenario where 36,000 cubic metres of dilbit were released over a period of 13 hours in Wright Sound, under summer conditions. Northern Gateway said that this was a conservative scenario as it involved a large volume of dilbit, which would be more persistent than condensate or synthetic crude oil. It said that the assessment considered interactions between oil and suspended sediment in the water column, which may result in sinking of the oil.
Northern Gateway said that, under the modelled conditions, dilbit would first strand on islands near the spill site, including the region of Hartley Bay, and eventually reach more distant shorelines. By the end of day 15, the model predicted that approximately 1 per cent of the dilbit would be left on the water surface, 6 per cent would be in the water column, 17 per cent would have evaporated, and 76 per cent would have stranded along approximately 240 kilometres of shoreline.
Northern Gateway said that potential effects of oil stranded on the shorelines and in the intertidal environment were assessed qualitatively with particular reference to the Exxon Valdez oil spill. It said that the entire intertidal zone along affected shorelines would likely be oiled, coating rocks, rockweed, and sessile invertebrates. Some of the diluted bitumen could penetrate coarse-grained intertidal substrates, and could subsequently be remobilized by tides and waves. There were relatively few shoreline areas with potential for long oil residency. Northern Gateway said that the stranded bitumen would not be uniformly distributed, and that heavy oiling would likely be limited to a small proportion of affected shoreline. Northern Gateway said that, compared to the Exxon Valdez oil spill, the simulation suggested that more dilbit would be distributed along a shorter length of shoreline.
Northern Gateway said that, due to the relatively sheltered conditions in Wright Sound, and in the absence of cleanup, most of the stranded oil would be weathered or dispersed into the marine environment within 3 to 5 years. It said that, while weathering and dispersal could represent an important secondary source of hydrocarbon contamination of offshore or subtidal sediments, the weathered hydrocarbons themselves would have lower toxicity than fresh dilbit.
Northern Gateway assessed potential effects on key marine receptors including marine water quality, subtidal sediment quality, intertidal sediment quality, plankton, fish, and a number of bird and mammal species. The company said that acute effects from monocyclic aromatic hydrocarbons such as benzene, toluene, ethylbenzene, and xylene may briefly occur in some areas. Acute effects from polycyclic aromatic hydrocarbons were not likely due to their low water solubility.
Northern Gateway said that chronic adverse effects on the subtidal benthic community were not predicted. After a large spill, consumption advisories for pelagic, bottom-dwelling and anadromous fish, and invertebrates from open water areas and subtidal sediments would probably be less than 1 year in duration. Northern Gateway said that consumption advisories for intertidal communities and associated invertebrates, such as mussels, could persist for 3 to 5 years or longer in some sheltered areas.
In response to questions from the United Fishermen and Allied Workers Union, Northern Gateway said that its modelling showed that only very small amounts of oil would reach the subtidal sediments and, as the chronic risk assessment showed, would not pose a significant risk to marine life.
Fisheries and Oceans Canada said that Northern Gateway's ecological risk assessment approach and methodology were reasonable and provided useful information on fisheries resources. It acknowledged that predicting or quantifying the impacts of an oil spill is challenging because there are so many factors to consider.
In response to questions from the Haisla Nation and the United Fishermen and Allied Workers Union, Fisheries and Oceans Canada said that, although it had a great deal of information on conventional oils, the results of research conducted on the biological effects of conventional oil products may not be true for dilbit or unconventional products. Fisheries and Oceans Canada said that it was not in a position to quantify the magnitude and duration of impacts to marine resources in the Confined Channel Assessment Area and Open Water Area without additional research. This research would require collaboration with Environment Canada, academia, and Northern Gateway.
Environment Canada said that, in order to fully understand detailed potential lethal and sublethal effects associated with a spill, additional research on fate and behavior, routes of exposure, and oil spill modelling would be required. It said that a cascading series of various types of science would be required. It said that the Scientific Advisory Committee could guide this type of work.
Northern Gateway was asked to explain the long-term fate and effects of oil dispersed in the water column, oil in flocculation, and oil remobilized from the shoreline. It said that flocculation would result in the oil being continually broken down into smaller and smaller particles, which increases the surface area for microbial degradation. It said that sunlight may also assist in breaking down oil particles. It said that degradation can occur entirely in the water column, or a small amount of particles may settle to the ocean floor. Oil particles could also be directly adsorbed to suspended sediment particles and, if the sediment particles are of sufficient size, settling would occur. The company said that oil bound to sediment and remobilized from sand and gravel beaches would likely settle in subtidal areas.
The company said that any of these processes could result in settling of oil to the ocean floor, but stressed that its ecological risk assessment showed that toxicological consequences would be negligible. It also said that potential effects on subtidal organisms, such as filter feeders, would depend on the specific circumstances of the spill, including polycyclic aromatic hydrocarbon concentrations in the spilled oil.
The United Fishermen and Allied Workers Union said that, because there are so many variables, each spill is a unique event, and some results will be unknowable. It said that a spill the size of the Exxon Valdez incident would affect the entire ecosystem in the project area, and that recovery to pre-spill conditions would be unlikely to ever occur. It said that a spill the size of the Exxon Valdez oil spill would likely have similar effects in the project area because marine resources in the project area are similar to those in Prince William Sound. It argued that the cold, sheltered, waters of the Confined Channel Assessment Area would likely experience reduced natural dispersion and biodegradation of oil, leading to heavier oiling and longer recovery times than seen in Prince William Sound and elsewhere.
The United Fishermen and Allied Workers Union said that different fish species will have diverse reactions to oil, and that acute, short-term, chronic, or long-term effects vary between types of fish. It said that the overall impact of spills on plankton community, both in the short term and over a number of years, is relatively poorly understood. It said that, although studies of the British Petroleum Deepwater Horizon spill in the Gulf of Mexico have indicated relatively rapid recovery of the plankton community, more research is required to measure impacts to sensitive species and other long-term effects.
The United Fishermen and Allied Workers Union said that patches of buried oil from the Exxon Valdez oil have been found on sand and gravel beaches overlain by boulders and cobbles. It said that effects from a tanker spill associated with the Enbridge Northern Gateway Project would likely be more severe than the Exxon Valdez oil spill due to the more persistent nature of dilbit and the lack of natural cleaning action in the sheltered waters of the Confined Channel Assessment Area.
The Gitxaala Nation's experts said that large historical spill events are not necessarily good indicators of what will happen in the future. They argued that each spill has unique circumstances and there is still significant uncertainty about the effects of major spills.
The Gitxaala Nation concluded Northern Gateway had failed to adequately consider the potential consequences on ecological values of interest to the Gitxaala. It also said that:
Coastal First Nations said that a tanker spill would result in significant adverse environmental effects and that Northern Gateway had failed to adequately consider potential effects associated with smaller spills.
Gitga'at First Nation said that a spill of dilbit greater than 5,000 cubic metres would result in significant, adverse, long-term, lethal, and sublethal effects to marine organisms, and that effects would be particularly long-lasting on intertidal species and habitats. It also said that effects from a tanker spill associated with the project would probably be more severe than the Exxon Valdez oil spill, due to the more persistent nature of dilbit and the lack of natural cleaning action in the sheltered waters of the Confined Channel Assessment Area.
Northern Gateway said that no oil recovery occurred for many large historical marine oil spills and that marine oil spill effects are largely reversible with appropriate cleanup strategies and natural recovery.
The company said that, when oil is spilled into the terrestrial, freshwater, and marine environments, numerous chemical, physical, and biological processes immediately begin to break down, biodegrade, and otherwise disperse and assimilate the spilled oil. It said that this natural degradation of oil sets the conditions under which the recovery of the biophysical and human environments from oil spills occurs. It said that, ultimately, spilled oil is broken down into carbon dioxide and water by sunlight (photolysis) and microbes (biodegradation).
The company said that degradation rates depend on the oil type and characteristics of the receiving environment, such as temperature, sunlight, and prevailing microbial populations. Northern Gateway said that, in the early stages of oil weathering after a spill, evaporation and photo-oxidation are usually more important than biodegradation, which is considered to be a relatively slow process.
It said that some oil fractions may persist for long periods of time as weathered, "tarry," high molecular weight polycyclic aromatic hydrocarbons. Others degrade more rapidly, including gasoline, light fuel oil, or low molecular weight hydrocarbons such as benzene. It said that dispersed hydrocarbons also degrade more readily than hydrocarbons that remain as blobs or pools of free product.
Northern Gateway said that microorganisms capable of degrading hydrocarbons are known to be present in the coastal waters of British Columbia, and their role in degrading oil in Prince William Sound following the Exxon Valdez oil spill is also well documented. A long-term study of a heavy fuel oil spill off the coast of Vancouver Island demonstrated that biodegradation accounted for almost all of the removal of n-alkenes in the first year following the spill. In response to a question from the Haisla Nation regarding biodegradation potential in the Kitimat River, Northern Gateway said that specific information regarding the presence of specific hydrocarbon-degrading microbes in the river is not available but such microbes are widely distributed in the environment.
Northern Gateway said that the ability of microorganisms to biodegrade oil is reduced in the absence of oxygen or nutrients, for example when oil is buried by sediments. It said that this can be offset by limited bioavailability of buried oil.
Northern Gateway summarized potential recovery of the terrestrial and freshwater environment as follows:
Northern Gateway also provided a more detailed review of the recovery of the biophysical and human environments from oil spills, in reply to participants' assertions that biophysical and human environments do not recover from spill events. The company used a case study approach and reviewed the scientific literature for environments similar to the project area. The review examined 48 spills, including the Exxon Valdez oil spill in 1989, and 155 valued ecosystem components from cold temperate and sub-arctic regions. Northern Gateway said that the scientific evidence is clear that, although oil spills have adverse effects on biophysical and human environments, ecosystems and their components recover with time.
Northern Gateway said that there is no consensus on a definition for "recovery," and that definitions have changed over the years. It said that the common element in most definitions involves a post-disturbance return of the ecosystem or valued ecosystem component to some desirable state.
Northern Gateway defined recovery as a return to the conditions that would have prevailed had the oil spill not occurred. It said that this definition recognizes the need to account for natural variability and for the influence of natural and man-made factors other than the spill, as these can obscure the signal from the oil spill. It said that recent scientific literature indicates that the goal of spill cleanup should be help restore the ecosystem to a functional state that provides valuable ecological goods and services.
Pacific herring, killer whales, and pink salmon were species that were extensively studied following the Exxon Valdez spill and were discussed by numerous participants in the Panel's process.
As referred to by the Haisla Nation, Pacific herring are listed as "not recovering" by the Exxon Valdez Oil Spill Trustee Council. The Trustee Council said that, despite numerous studies to understand the effects of oil on herring, the causes constraining population recovery are not well understood. Northern Gateway said that scientific evidence indicates that a combination of factors, including disease, nutrition, predation, and poor recruitment appear to have contributed to the continued suppression of herring populations in Prince William Sound.
Northern Gateway said that 20 years of research on herring suggests that the Exxon Valdez oil spill is likely to have initially had localized effects on herring eggs and larvae, without causing effects at the population level. Northern Gateway said that, even after 20 years, the effects of the spill on herring remain uncertain. It said that there has also been convergence amongst researchers that herring declines in the spill area cannot be connected to the spill. Northern Gateway said that herring stocks along the entire coast of British Columbia have been in overall decline for years and that herring were shown to recover within 1 to 2 years following the Nestucca barge spill. A Gitxaala Nation expert noted the uncertainty in interpreting the decline of herring following the Exxon Valdez oil spill and said that the debate is not likely to ever be settled.
The Living Oceans Society said that the Exxon Valdez Oil Spill Trustee Council reported that some killer whale groups suffered long-term damage from initial exposure to the spill. Northern Gateway's expert said the research leads him to conclude that the actual effects on killer whales of the Exxon Valdez spill are unknowable due to numerous confounding factors. He said that the Exxon Valdez Oil Spill Trustee Council has not definitively said that killer whale mortalities can be attributed to the spill. A Government of Canada expert said that the weight of evidence suggests that the mortality of killer whales was most likely related to the spill.
Northern Gateway said that mass mortality of marine fish following a spill is rare. In response to questions from the Haisla Nation, Northern Gateway said that fish have the ability to metabolize potentially toxic substances such as polycyclic aromatic hydrocarbons. It said that international experience with oil spills has demonstrated that fin fishery closures tend to be very short in duration. Northern Gateway said that food safety programs for fin fish conducted following the Exxon Valdez spill and the Selendang Ayu spill in Alaska indicated that the finfish were not affected by the spill and that the fish were found, through food safety testing programs, to be safe to eat.
The Haisla Nation referred to the Exxon Valdez Oil Spill Trustee Council report that discussed the complexities and uncertainties in the recovery status of pink salmon. It said that, by 1999, pink salmon were listed as recovered and that the report noted that continuing exposure of embryos to lingering oil is negligible and unlikely to limit populations. Northern Gateway said that the long-term effect of the spill on pink salmon survival is best demonstrated by the success of adult returns following the spill. Northern Gateway said that, in the month following the spill, when there was still free oil throughout Prince William Sound, hundreds of millions of natural and hatchery pink salmon fry migrated through the area. It argued that these fish would arguably be at greatest risk from spill-related effects but that the adult returns 2 years later were one of the highest populations ever. Northern Gateway said that sockeye and pink salmon appear to have been unaffected by the Exxon Valdez spill over the long term.
In response to questions from the Council of the Haida Nation and the United Fishermen and Allied Workers Union, Northern Gateway said that effects on species such as seaweed, crabs, and clams have been shown to be relatively short-term, with these species typically recovering within 2 years or less following a spill, depending on circumstances. Northern Gateway said that, based on the Exxon Valdez spill, the level of hydrocarbons dissolved or suspended in the water column would be expected to be substantially lower than those for which potential toxic effects on crabs or fish may occur.
In response to questions from BC Nature and Nature Canada, Northern Gateway said that the Exxon Valdez oil spill indicates which species of birds are most susceptible to oiling. Seabirds are generally vulnerable to oil spills because many species spend large amounts of time at sea. Diving seabirds such as murres are particularly vulnerable to oiling because they spend most of their time on the surface, where oil is found, and tend to raft together. Thus, these species often account for most of the bird mortality associated with oil spills. More than 30,000 seabird carcasses, of which 74 per cent were murres, were recovered following the Exxon Valdez spill and it was initially estimated that between 100,000 and 300,000 seabirds were killed. However, detailed surveys of breeding murres in 1991 indicated no overall difference from pre-spill levels confirming rapid recovery of this species. Northern Gateway said that, although potential toxicological effects from oil spills on birds have been well documented in laboratory studies, the ultimate measure of recovery potential is how quickly birds return to their natural abundance and reproductive performance. It said that recovery is often difficult to measure due to significant natural variation in populations and the fact that the baseline is often disputed. It said that this can lead to misinterpretation of results depicting recovery.
At the request of Environment Canada, Northern Gateway filed two reports on the susceptibility of marine birds to oil and the acute and chronic effects of the Exxon Valdez oil spill on marine birds. Northern Gateway said that marine birds are vulnerable to oil in several ways such as contact, direct or indirect ingestion, and loss of habitat. It said that many marine bird populations appear to have recovered from the effects of the Exxon Valdez spill, but some species such as harlequin ducks and pigeon guillemots have not recovered, according to the Exxon Valdez Oil Spill Trustee Council. It said these reports demonstrate that marine birds are susceptible to marine oil spills to varying degrees depending on the species, its life history and habitat, and circumstances associated with the spill.
Northern Gateway concluded that:
The Living Oceans Society noted the following in relation to potential recovery of the marine environment following a spill:
The Panel posed a series of questions to experts representing Northern Gateway, federal government participants, and the Gitxaala First Nation regarding the potential recovery of marine ecosystems following a large oil spill.
Northern Gateway said that past marine spills have demonstrated that, over time, the environment will recover to a pre-spill state, and that most species fully recover. It said that species associated with the surface of the water tend to be most susceptible to oil spills, and that cleanup efforts can help direct and accelerate natural restoration processes.
Federal government experts generally agreed with Northern Gateway's responses, although they stressed that effects could be felt in areas other than the water surface, such as intertidal and subtidal zones. They said that it is difficult to define and assess effects and recovery, depending on the species and availability of baseline information. They said that most species may fully recover over time, and that the time frame for this recovery can be extremely variable depending on species and circumstances.
The Gitxaala Nation's experts noted the potential for effects on species at the water surface and in intertidal areas, and noted exceptions to the notion that the marine environment will naturally restore itself. They said that full recovery can occur, depending on the circumstances, but is not guaranteed. They said that it is difficult to assess spill effects in the absence of adequate baseline information.
Participants told the Panel that a lack of baseline information has often made it difficult to separate spill-related effects from those that were caused by natural variation or other causes not related to a spill. Northern Gateway acknowledged the need for adequate baseline information. Parties such as Coastal First Nations, Raincoast Conservation Foundation, and the Gitxaala Nation said that Northern Gateway had provided insufficient baseline information to assess future spill-related effects. The Kitsumkalum First Nation asked how spill-related effects on traditionally harvested foods could be assessed in the absence of baseline information.
The Haisla Nation noted the importance of collecting baseline data in the Kitimat River valley to compare with construction and spill-related impacts. The Haisla Nation submitted a report outlining important considerations for a baseline monitoring program. One recommendation was that the program should engage stakeholders and be proponent-funded. In response to questions from Northern Gateway, the Haisla Nation noted that a design along the lines of a before/after control/impact model would be appropriate. In response to these comments, Northern Gateway noted its commitment to implement a Pipeline Environmental Effects Monitoring Program (also discussed in Chapter 8). Northern Gateway's proposed framework for the monitoring program indicates that a number of water column, sediment, and biological indicators would be monitored.
The Raincoast Conservation Foundation said that one of the principal lessons learned from the Exxon Valdez oil spill was the importance of collecting abundance and distribution data for non-commercial species. Because baseline information was lacking, spill effects on coastal wildlife were difficult to determine. Environment Canada also noted the importance of adequate baseline information to assess, for example, spill-related effects on marine birds.
Northern Gateway outlined the baseline measurements that it had already conducted as part of its environmental assessment. It also said that is would implement a Marine Environmental Effects Monitoring Program. Northern Gateway said that the initial baseline data, plus ongoing monitoring, would create a good baseline for environmental quality and the abundance, distribution, and diversity of marine biota. In the event of an oil spill it would also help inform decisions about restoration endpoints.
Northern Gateway said that it would provide Aboriginal groups with the opportunity to undertake baseline harvesting studies. In response to questions from the United Fishermen and Allied Workers Union, Northern Gateway said that baseline information gathered through the environmental effects monitoring program would also be relevant to commercial harvest management and for assessing compensation claims in the event of a spill.
The Kitimat Valley Naturalists noted the ecological importance of the Kitimat River estuary and the particularly sensitive nature of the resources there, including eel grass and black oystercatcher. It said that Northern Gateway had not collected adequate baseline data in this area and had ignored important data available from the Kitimat Valley Naturalists. Northern Gateway and the Kitimat Valley Naturalists agreed that these data would be shared as baseline information.
The Panel heard evidence and opinion regarding the value that the public and Aboriginal groups place on a healthy natural environment. The Panel finds that it is not able to quantify how a spill could affect people's values and perceptions. The Panel finds that any large spill would have short-term negative effects on people's values, perceptions and sense of wellbeing. The Panel is of the view that implementation of appropriate mitigation and compensation following a spill would lessen these effects over time. The Panel heard that protracted litigation can delay recovery of the human environment. The Panel heard that appropriate engagement of communities in determining spill response priorities and developing community mitigation plans can also lessen effects on communities. Northern Gateway has committed to the development of Community Response Plans as discussed in Section 7.4.
All ecosystems are subject to disturbance and change associated with natural and human causes, and have some degree of resilience and recovery capacity. Some ecosystem changes can be attributed to specific events such as a forest fire, a severe storm, or an oil spill. Other changes, such as natural variability in species composition and populations, or the effects of overharvesting, are more difficult to associate with one particular causal event. Human activities can interact with natural processes or events.
The Panel finds that the effects of small oil or condensate leaks or spills that are confined largely to the pipeline right-of-way, station properties, or the immediate area of the Kitimat Terminal, are not likely to be significant. Spill response, cleanup, and natural recovery are likely to quickly restore affected local ecosystems.
The Panel finds that a large terrestrial, freshwater, or marine oil or condensate spill would cause significant adverse environmental effects and that the adverse effects would not be permanent and widespread. The type and duration of effects would be highly variable and would depend on the type and volume of product spilled, location of the spill, exposure of living and non-living ecosystem components to the product spilled, and environmental conditions. Effects and toxicity would decrease over distance and time from the spill. Short-term, acute environmental effects are likely with any large oil or condensate spill. Chronic effects would be more likely with heavier hydrocarbons such as synthetic crude oil or dilbit.
The Panel finds that the physical characteristics of the Confined Channel Assessment Area, and its potentially lower rates of natural dispersion and degradation, would likely result in longer lasting spill effects on certain living and non-living environmental components in the Confined Channel Assessment Area than for a spill in the Open Water Area. The Panel finds that there is potential for some oil to sink if it interacts with sediment or suspended particulate matter, or over the long term, due to natural weathering processes.
The Panel is of the view that the relatively confined nature of the Confined Channel Assessment Area, and the potential for submerged oil to resurface, increases the potential for oil to reach the shoreline in that area. Submergence and refloating of oil would be likely for a spill in the Open Water Area. Depending on oil trajectory, oil could reach shorelines.
The Panel finds that a large spill would not cause permanent, widespread damage to the environment. Evidence from past spills indicates that, although each large spill event is a unique event, the environment recovers to a state that supports functioning ecosystems similar to those existing before the spill. There was general agreement on this point amongst parties with expertise in oil spill preparedness, response, and environmental recovery.
The Panel's finding regarding ecosystem recovery following a large spill is based on extensive scientific evidence filed by many parties, including information on recovery of the environment from large past spill events such as the Exxon Valdez oil spill. The Panel notes that different parties sometimes referred to the same studies on environmental recovery after oil spills, and drew different conclusions. In its consideration of natural recovery of the environment, the Panel focused on effects that are more readily measurable such as population level impacts, harvest levels, or established environmental quality criteria such as water and sediment quality criteria.
The Panel finds that the evidence indicates that ecosystems will recover over time after a spill and that the post-spill ecosystem will share functional attributes of the pre-spill one. Post-spill ecosystems may not be identical to pre-spill ecosystems. Certain ecosystem components may continue to show effects, and residual oil may remain in some locations. In certain unlikely circumstances, the Panel finds that a localized population or species could potentially be permanently affected by an oil spill. Scientific studies after the Exxon Valdez spill indicated that the vast majority of species recovered following the spill and that functioning ecosystems, similar to those existing pre-spill, were established. Species for which recovery is not fully apparent, such as Pacific herring, killer whales, and pigeon guillemots, appear to have been affected by other environmental factors or human influences not associated with the oil spill. Insufficient pre-spill baseline data on these species contributed to difficulties in determining the extent of spill effects.
Based on the evidence, the Panel finds that natural recovery of the aquatic environment after an oil spill is likely to be the primary recovery mechanism, particularly for marine spills. Both freshwater and marine ecosystem recovery is further mitigated where cleanup is possible, effective, and beneficial to the environment. Natural processes that degrade oil would begin immediately following a spill. Although residual oil could remain buried in sediments for years, the Panel finds that toxicity associated with that oil would decline over time and would not cause widespread, long-term impacts.
The Panel finds that Northern Gateway's commitment to use human interventions, including available spill response technologies, would mitigate spill impacts to ecosystems and assist in species recovery. Many parties expressed concerns about potential short-term and long-term spill effects on resources that they use or depend on, such as drinking water, clams, herring, seaweed, and fish. The weight of evidence indicates that these resources recover relatively rapidly following a large oil spill. For example, following the Selendang Ayu and Exxon Valdez spills in Alaska, fin fish were found, through food safety testing programs, to be safe to eat. Food safety closures for species such as mussels, urchins, and crabs were lifted within 1 to 2 years following the spills.
The actual time frame for recovery would depend on the circumstances of the spill. Until harvestable resources recover, various measures are typically put in place, such as compensation, harvest restrictions or closures, and provision of alternative supply.
It is difficult to define recovery of the human environment because people's perceptions and values are involved. This was made clear to the Panel through oral statements and oral evidence. The Panel finds that oil spills would cause disruptions in people's lives, especially those people who depend on the marine environment for sustenance, commercial activities and other uses. The extent and magnitude of this disruption would depend on the specific circumstances associated with the spill. The Panel views recovery of the socio-economic environment as the time when immediate impacts and interruption to people's lives are no longer evident, and the natural resources upon which people depend are available for use and consumption.
The Panel heard that assessing the potential recovery time of the environment is often complicated by challenges in separating background or unrelated events from spill-related effects. There can be natural variation in species populations, and other natural and human-induced effects can also make it difficult to determine which impacts are spill-related and which are not. The Panel notes that Northern Gateway has committed to collect baseline data and gather baseline information on harvest levels and values through initiatives such as its Environmental Effects Monitoring Program, Fisheries Liaison Committee, and traditional harvest studies. The Panel finds that these commitments go beyond regulatory requirements and are necessary. This information would contribute to assessments of spill effects on resource harvesting values, post-spill environmental recovery, and loss and liability determinations.
The Panel is of the view that it is not possible to predict a specific time in which overall recovery of the environment may occur. The time for recovery would depend on the type and volume of product spilled, environmental conditions, the success of oil spill response and cleanup measures, and the extent of exposure of living and non-living components of the environment to the product spilled. Recovery of living and non-living components of the environment would occur over different time frames ranging from weeks, to years, and in the extreme, decades. Even within the same environmental component, recovery may occur over different time frames depending on local factors such as geographic location, the amount of oiling, success of cleanup, and amount of natural degradation.
Based on the physical and chemical characteristics described for the diluted bitumen to be shipped and the fate and transport modelling conducted, the Panel finds that stranded oil on shorelines would not be uniformly distributed on shorelines and that heavy oiling would be limited to specific shoreline areas. The Panel accepts Northern Gateway's prediction that spilled dilbit could persist longer in sheltered areas, resulting in longer consumption advisories for intertidal communities and associated invertebrates than in more open areas. Based on the scientific evidence, the Panel accepts the results of the chronic risk assessment that predicted no significant risks to marine life due to oil deposition in the subtidal sediments.
For potential terrestrial and marine spills, the Panel does not view reversibility as a reasonable measure against which to predict ecosystem recovery. No ecosystem is static and it is unlikely that an ecosystem will return to exactly the same state following any natural or human induced disruption. Based on the evidence and the Panel's technical expertise, it has evaluated whether or not functioning ecosystems are likely to return after a spill. Requiring Northern Gateway to collect baseline data would provide important information to compare ecosystem functions before and after any potential spill.
The Panel finds that Northern Gateway's ecological and human health risk assessment models and techniques were conducted using conservative assumptions and state of the art models. Combined with information from past spill events, these assessments provided sufficient information to inform the Panel's deliberation on the extent and severity of potential environmental effects. The Panel finds that this knowledge was incorporated in Northern Gateway's spill prevention strategies and spill preparedness and response planning. Although the ecological risk assessment models used by Northern Gateway may not replicate all possible environmental conditions or effects, the spill simulations conducted by Northern Gateway provided a useful indication of the potential range of consequences of large oil spills in complex natural environments.
Northern Gateway said that it is impossible to eliminate all risks associated with the project. It said that it was focused on mitigation measures to reduce the likelihood of oil spills occurring and, if a spill occurs, to limit the consequences through a preparedness and response program that exceeds Canadian standards.
Northern Gateway's approach to pipeline design and other mitigation intended to prevent spills is discussed in Chapter 5.
This section discusses additional measures pertaining to prevention of pipeline spills or minimizing their potential environmental effects through other engineering and planning measures. Northern Gateway said that the objective of pipeline design, engineering, construction, and operations is to mitigate and manage the level of risk over the life of the pipeline with the goal of avoiding spills of any size. It said that the most effective approach to avoid the potential effects of pipeline spills and other malfunctions and accidents is by preventing them from occurring in the first place.
Northern Gateway's semi-quantitative risk assessment concluded that most of the pipeline route has a low risk rating. The Province of British Columbia questioned Northern Gateway about its spill prevention measures and response strategies for high consequence areas. Northern Gateway said that its target release volumes were established not only for tributaries, but along entire zones such as where the pipeline would be constructed parallel to the Kitimat River, Morice River, and other high consequence areas. It said that full-bore rupture modelling provided a worst case unmitigated scenario to help the company prioritize locations for spill response planning. Northern Gateway said that this is a very conservative approach as the system would likely be isolated sooner than its targeted 13-minute valve closure response time because of the signals and alarms that would be activated.
Northern Gateway's semi-quantitative risk assessment identified high consequence areas, such as the Necoslie River, Pitka Creek, the Sutherland River, and Duncan Creek where the potential oil release volume would exceed Northern Gateway's 2,000 cubic metres release guideline. The Panel questioned Northern Gateway on the technologies that would be available in these areas and the additional mitigation measures that could be applied. Northern Gateway said that technologies such as hydrocarbon sensors, diversion berms, culvert flow control devices, and engineered containment systems would be used in these areas and that it was evaluating different technologies to determine their benefits and limitations. This would occur during detailed design and planning with the objective of reducing the overall risk for identified pipeline segments. As an example, Northern Gateway outlined an engineered oil diversion and containment system for a section of the pipeline in the Kitimat River valley with potentially difficult access. The purpose of the system would be to control and divert potential spills to less harmful locations where products could be contained and retrieved.
Northern Gateway said that such design measures would be refined in consultation with the British Columbia Ministry of Forests, Lands and Natural Resource Operations, participating First Nations, and industry during detailed design and planning. Northern Gateway said that it would consider using similar technology elsewhere on the project.
Northern Gateway said that the company's risk based approach also considers re-routing of the pipeline right-of-way as a mitigation measure to reduce the hazards and consequences to high consequence areas. Northern Gateway said that the pipeline was re-routed in the Morice River area due to concerns of Fisheries and Oceans Canada about the proximity of the pipeline to the Morice River, the importance of the river from a fisheries perspective, and the presence of geotechnical hazards in this area. Northern Gateway said that this re-route would reduce proximity to the river and avoid geotechnical hazards.
Northern Gateway outlined its potential use of the Clore and Hoult Creek tunnels for emergency preparedness and response purposes. In response to questions from the Haisla Nation, it said that the tunnels are a major mitigative measure for addressing geotechnical hazards and potential environmental impacts. Northern Gateway's technical assessment demonstrated that a system could be designed to contain and collect a spill within the tunnels. Further evaluation of the collection and containment measures would be undertaken during detailed design and planning. Northern Gateway also identified the use of the tunnels themselves as access routes for response during difficult conditions such as in the winter.
Northern Gateway conducted a quantitative risk analysis to assess worker safety at the Kitimat Terminal and public safety in the vicinity of the Kitimat Terminal. The assessment evaluated the hazards associated with over 100 "loss of containment" scenarios and modelled the consequence of each representative release scenario including dispersion, pool and flash fires, and explosions. The results of the analysis would be used by Northern Gateway to develop strategic and tactical measures in the design, layout, engineering, and operations of the facility. Northern Gateway indicated that the results would help the company develop its Emergency Response Plan for the Kitimat Terminal and surrounding areas.
The Haisla Nation stressed the importance of a robust system for mitigation, prevention, emergency response, and oversight of minor incidents and spills at the Kitimat Terminal. In response to questions from Northern Gateway, the Haisla Nation's expert confirmed that most of the reported spills in Prince William Sound were minor releases from tankers at berth at the terminal ranging from less than a teaspoon to a few gallons.
In response to questions from the Haisla Nation, Northern Gateway outlined mitigation such as sump construction, use of drip trays, and dock curbing to prevent potential spills from reaching the water during tanker loading at the Kitimat Terminal. It committed to deploy booms around tankers during loading of oil.
Northern Gateway said that over 1 million barrels of crude oil and petroleum products are safely shipped into and out of Canadian ports on the Atlantic and Pacific coasts each day. These ports include Saint John, New Brunswick, Montreal and Vancouver, as well as Kitimat. The company said that, early in project development, it became aware of significant concern from the public and Aboriginal people regarding the marine transportation component of the project, particularly regarding oil spills. This concern drove the company's consideration of marine shipping issues and its proposed mitigation.
Northern Gateway committed to full compliance with national and international regulatory frameworks, including the requirements for:
Northern Gateway also committed to implement a number of voluntary measures related to safe terminal and tanker operations that exceed Canada Shipping Act, 2001 requirements. The Panel refers to these as marine voluntary commitments. These are outlined later in this section.
Northern Gateway is proposing to use three different vessel types to transport oil and condensate:
Aframax and Suezmax tankers would be used to import condensate. Suezmax tankers and VLCCs would be used to export oil. Typical dimensions for these vessels are shown in Figure 7.1. An average of 220, and a maximum of 250, vessel loads per year are projected for the Kitimat Terminal. Suezmax tankers would account for approximately one-half of these loads. Northern Gateway said that increased use of VLCCs would reduce the number of loads.
Northern Gateway said that, as long as the proposed shipping routes are viable for the size of the vessel, vessel size is not particularly relevant to the probability of tanker incidents such as groundings or collisions. Northern Gateway said that VLCCs are slower to stop and maneuver than smaller vessels. It said that larger vessels, such as laden VLCCs, can be easier to handle than smaller unladen vessels, as external forces such as wind, waves, and currents have less influence on VLCC movement.
Northern Gateway assessed current levels of marine traffic in the project area, including size of vessels and number of transits. Generally, vessels currently transiting the Confined Channel Assessment Area are smaller than the project vessels in terms of length and tonnage, although cruise ships up to 296 metres in length currently transit Grenville Channel as part of the Inside Passage route. The largest vessel to have come into Kitimat is 50,000 deadweight tonnes. Large coal ships and container vessels up to 350 metres in length transit to the Port of Prince Rupert.
Figure 7.1 Typical size and dimensions of vessels associated with the project
The shipping routes associated with the project are shown in Figure 7.2. All shipping would take place in already established shipping routes which currently see large vessel traffic. Northern Gateway noted the finding of the TERMPOL review that all shipping routes proposed for the project are suitable for safe transit by a VLCC. The total transit time for a vessel from the pilot boarding station on the northern approach to the Kitimat Terminal would be approximately 15 hours.
Three tanker routing options are proposed by Northern Gateway. They include:
Coastal First Nations and other intervenors expressed concerns regarding weather on the West Coast and its ability to impact the safety of marine shipping. The Panel also heard comments from individuals and groups regarding extreme weather and tidal conditions along the proposed shipping routes. The Panel heard evidence that the West Coast is subject to high winds, large waves, and storms, particularly in the winter months. Oral statements and oral evidence referred to very high winds, in the 100 to 200 kilometres per hour range.
Northern Gateway said that, although winds speeds of between 111 kilometres per hour and 185 kilometres per hour are described in its application, these wind speeds referred to Arctic outflow winds on the coast of British Columbia in general, rather than Kitimat Arm, Douglas Channel or the Confined Channel Assessment Area specifically.
Environment Canada observations, and analyses undertaken by Northern Gateway and the Haisla Nation, demonstrated variability in the data in terms of whether the mean or maximum wind speed was measured, how long the wind blew for, the time of year of measurement, and other factors. These data indicated that, most of the time, winds speeds are in the 40 to 60 kilometres per hour range, or less. These data also indicated that maximum wind speeds in the Open Water Area and Confined Channel Assessment Area have been measured in the 100 kilometres per hour range. Northern Gateway said that wind speeds exceeding 90 to 100 kilometres per hour are rare in the Open Water Area. It also said that wind speeds exceeding 80 kilometres per hour occur between 0.06 per cent and 0.29 per cent of the time at sites in the Confined Channel Assessment Area and the Open Water Area.
The Pacific Pilotage Authority said in a letter of comment that, although the West Coast can have severe weather, the confined channels are often more protected than open water areas. It said that wind speeds on the West Coast are either comparable to, or less than, winds on the East Coast, with maximum wind speeds not exceeding 100 kilometres per hour.
Northern Gateway said that the largest measured significant wave height at Nanakwa Shoal in the Douglas Channel is 2.3 metres. It said that significant wave heights exceeding 4 metres occur nearly 18 per cent of the time in Queen Charlotte Sound, 7 per cent of the time in South Hecate Strait, 3.3 per cent of the time in North Hecate Strait, and 2.1 per cent of the time in Dixon Entrance.
Douglas Channel Watch, the Heiltsuk Tribal Council and others questioned a tanker's ability to operate safely in large waves. Northern Gateway said that tankers are designed to operate in extreme wave environments and such conditions present no problem.
During the oral evidence session in Bella Bella, the Heiltsuk Tribal Council said that waves building up to 30 feet in height had been observed in the Caamaño Sound area. Northern Gateway said that such wave heights could occur but they would be extremely rare and even should they occur, tankers are designed for wave conditions such as this, and worse. Northern Gateway said that weather conditions producing such waves would be forecast well in advance, and tankers would be advised by Marine Communications and Traffic Services to take appropriate measures. Northern Gateway said that it did not anticipate that tankers would pass through such extreme weather conditions, although they are able to do so. Northern Gateway supplemented existing Environment Canada and Fisheries and Oceans Canada weathering monitoring stations with its own weather monitoring stations. Douglas Channel Watch expressed concerns regarding the validity of the data from these stations. In response to questions from Douglas Channel Watch, Environment Canada said that it had reviewed the locations and settings of Northern Gateway's stations. It said that the stations adequately represented the weather for the Douglas Channel areas where they were placed.
Northern Gateway acknowledged that British Columbia north coast weather conditions can be severe and need to be taken into consideration for all marine operations. The marine shipping quantitative risk analysis performed by Northern Gateway as part of its TERMPOL submissions concluded that weather and ocean conditions in the project area are comparable to other areas of the world with significant tanker traffic. The company said that tankers and marine oil terminals have operated for decades on Canada's east and west coast, and on the coasts of Norway, Scotland, and Japan, all of which experience weather and ocean conditions similar to those on the British Columbia north coast.
Figure 7.2 Kitimat Terminal and tanker routes
The proposed site for the terminal facility is on the northwest side of Kitimat Arm of Douglas Channel. Tankers could follow several possible routes to and from the terminal. The routes would pass through waters used by Aboriginal groups, commercial and recreational fisheries, sailors and kayakers, tourist vessels, ferries, and other shipping. Northern Gateway said that project-associated tankers would represent about 10 per cent of ship traffic in Wright Sound and about one-third of ship traffic in Douglas Channel leading to Kitimat.
In oral statements and oral evidence the Panel heard that there are shallow areas in Hecate Strait. Northern Gateway said that tanker traffic would use established shipping routes. It said that the western part of Hecate Strait is very shallow, and that tankers calling at the Kitimat Terminal would use the eastern half of the Strait where the water is deeper.
Northern Gateway said that there are no water depth constraints to navigation along the Northern and Southern Approaches for the tankers that would call at the Kitimat Terminal. In response to questions from the Heiltsuk Tribal Council, Northern Gateway said that the proposed tanker routes are not in areas of shallow water and that the routes in Hecate Strait are already used by ships navigating in and out of the Port of Prince Rupert.
Northern Gateway said that the narrowest points in the Confined Channel Assessment Area do not restrict navigation. The two narrowest points are near Dixon Island in Principe Channel and at Emilia Island in Douglas Channel. At these points the channel width is 21.5 times the breadth, and 4 times the length, of a VLCC. Northern Gateway said that these ratios are safe for VLCC navigation. The Pacific Pilotage Authority said that Aframax tankers with a width of 42 metres pass under Second Narrows Bridge with a channel width of 136 metres when entering the Port of Vancouver.
In response to questions from the Coastal First Nations, Northern Gateway said that, in practice, pilots would avoid having two ships pass by each other in the narrowest points along the route. This would be achieved by having vessels adjust departure time, arrival time, or speed.
Northern Gateway said that tidal currents are not complex over most of the tanker routes, and that their tanker and tug simulations had incorporated currents. The Gitxaala Nation had concerns about strong currents in Principe Channel and Douglas Channel. Northern Gateway said that the Principe Channel and Douglas Channel have relatively moderate currents with maximums of 1 to 2 knots over the most of the route. It said that there are 6,000 transits a year through Boundary Pass and around Discovery Island at Victoria, where currents often reach 6 knots. Northern Gateway's expert, a former pilot on the West Coast, said that piloting a large vessel in and out of Prince Rupert Harbour and the Port of Vancouver would be more dangerous and challenging, due to natural hazards and tidal currents, than going to Kitimat would be.
The TERMPOL report said that the proposed shipping routes are appropriate for the tankers that would load and unload at the proposed terminal, and that there are no charted obstructions on the proposed tanker routes that would pose a safety hazard to fully loaded oil tankers. The report said that the Canadian Hydrographic Service is in the process of updating several charts of the area to ensure the most accurate information is available for safe navigation.
The report said that the Canadian Coast Guard had reviewed the proposed tanker routes taking into account the size of the largest proposed oil tankers, traffic density, and environmental factors affecting tanker manoeuvrability. It found that the waterways comply with Coast Guard guidelines and that the proposed routes provide the clearances and allowances required for good vessel manoeuvrability and safe VLCC navigation. This conclusion was assisted by Northern Gateway's navigation simulations showing that the largest tankers are capable of navigating the entire proposed route unassisted. The report said that this is consistent with opinions of Pacific Pilotage Authority Canada and the British Columbia Coast Pilots.
The report said that, although there will always be residual risk in any project, it had not identified any regulatory concerns for the vessels, vessel operations, proposed routes, navigability, other waterway users, and the marine terminal operations associated with the Enbridge Northern Gateway Project. It said that commitments by the proponent would help ensure that safety is maintained at a level beyond the regulatory requirements.
In response to the TERMPOL Review Committee's findings and recommendations, Northern Gateway said that it was committed to fully implementing the risk mitigation measures that it had submitted to the TERMPOL Review Committee.
Northern Gateway committed to develop a tanker vetting program, called the Tanker Acceptance Program, to ensure that tanker owners and operators implement its marine voluntary commitments. Gateway would control access to the Kitimat Terminal through its Tanker Acceptance Program, which would be developed and implemented before the start of terminal operation.
The Tanker Acceptance Program would be in addition to, and would reinforce, other requirements that tanker owners must comply with, such as an initial inspection by a classification society and inspection under Transport Canada's Port State Control inspection program. The Tanker Acceptance Program would use a third party inspection database such as the Oil Companies International Marine Forum SIRE (Ship Inspection Report) Program. The Haisla Nation said that the SIRE program provides a good general framework for tanker vetting.
Northern Gateway said that the results of tanker inspections, wherever those inspections may be performed, would be input to the SIRE database to create a "living record" of the tanker. This allows the Tanker Acceptance Program to identify and reject any tanker that fails to meet the acceptance requirements. The Tanker Acceptance Program and Terminal Regulations also provide the means by which Northern Gateway would monitor and enforce its marine voluntary commitments, such as vessel speed restrictions.
In response to questions from the Province of British Columbia, Northern Gateway committed to have its Tanker Acceptance Program audited by a qualified, competent, independent auditor, and to make the results publically available.
In addition to the Tanker Acceptance Program, Terminal Regulations would be developed by Northern Gateway, specifying rules tankers must follow to be allowed to berth and load or discharge cargo. Northern Gateway said that Terminal Regulations are in effect at most marine terminals worldwide. Tankers that fail to abide by the Terminal Regulations risk being refused service and required to leave the terminal. In addition, a Port (or Terminal) Information Book would be developed to provide the master of the tanker with general information such as the operational regulations, navigation information, general weather, ship and crew services, local customs, and escort requirements.
Northern Gateway said that these documents are an important risk management tool for terminal and tanker operators. In concert with government regulations, they provide a process to assess individual tanker condition and history of operations, and provide pertinent information to tankers on the subject of the port and terminal safety and operations. A Northern Gateway expert said that the tanker industry is a heavily regulated industry and he said that it is probably watched more carefully than any other merchant marine sector. In light of this, he said that there is no incentive for tanker owner and operators to violate regulations, as no one would charter them, and they would not be able to operate.
Transport Canada said that the Tanker Acceptance Program is a voluntary measure, and that there are no provisions in Canadian marine shipping legislation that would make voluntary measures mandatory or enforceable. It also said that the program would be developed, implemented, and enforced by Northern Gateway.
Northern Gateway committed to provide copies of its Terminal Operations Manual and Port Information Book to Transport Canada, Fisheries and Oceans Canada, and Pacific Pilotage Authority Canada for review at least 6 months before the start of terminal operations. Northern Gateway said that it would also provide all oil tankers and their agents with the Terminal Operations Manual and Port Information Book in time for them to understand and fully comply with these documents.
Local pilots would board tankers at established pilot boarding stations in the outer section of Caamaño Sound and Browning Entrance, either by helicopter or pilot boat, depending on visibility and weather conditions. A minimum of two pilots would board the tankers for transit to and from the Kitimat Terminal and through coastal waters. The Pacific Pilotage Authority said that the number of delays in delivering pilots to vessels in the Prince Rupert/Kitimat area, over the past 10 years, is negligible. It said that it has never had a vessel wait more than 6 hours for a pilot and that it has an on time service delivery of 99.99 per cent. On occasions when the weather does exceed the parameters to launch safely, the vessel is given advance warning and either slows down or takes shelter. Coastal First Nations said that it was not aware of any situations where a pilot could not board due to weather.
Northern Gateway outlined a team approach to navigation of the vessel that includes the pilot, tanker master, and tug master. It said that Canadian law requires the pilot to take navigational control of the vessel if there are differences of opinion.
For voyages longer than 8 hours, or more than 105 nautical miles, 2 pilots are required. Parties raised concerns regarding the potential for pilot and captain fatigue due to the length of passage. Northern Gateway responded that pilots are often required to make 48-hour transits from Vancouver to Prince Rupert on cargo ships and 30-hour transits from Vancouver to Triple Islands on cruise ships.
Following computer simulation testing, the Pacific Pilotage Authority concluded that a VLCC could safely navigate the entire proposed routes without the use of escort tugs. Northern Gateway's marine shipping quantitative risk analysis concluded that the greatest unmitigated hazard to marine traffic transiting to and from the Kitimat Terminal is unpowered drift or powered grounding. It said that this hazard is most effectively mitigated by the use of escort tugs. In the event that a ship is in need of assistance due to weather conditions or mechanical breakdown, Northern Gateway proposed a tug escort program as follows:
Northern Gateway said that there are currently no suitable tugs in the project area and that all tractor tugs would be specifically designed for the project. Figure 7.3 shows the preliminary design. It said that such tugs would be designed to provide escort response in all weather conditions in which tankers would be operating in the Confined Channel Assessment Area, and that they would also be available for emergency rescue purposes in the Open Water Area. As open ocean tug rescue service does not currently exist on the British Columbia North Coast, Northern Gateway said that addition of its tugs would not only mitigate hazards to project shipping, but would also increase the overall safety for shipping and protection of the environment on the British Columbia North Coast.
In response to questions from Douglas Channel Watch, Northern Gateway's experts said that studies have demonstrated that escort tugs are very effective in preventing groundings and collisions. In operation, there has never been a case where a tanker tethered to an escort tug has run aground or been involved in a collision.
The TERMPOL Review Committee said that although there are no requirements under the Canada Shipping Act, 2001 for the use of escort tugs, they are used in some local areas to provide an additional margin of safety. It found that Northern Gateway's commitment to implement a tug escort system that provides immediate and effective action would help mitigate risk if a tanker's steering or propulsion system fails. The TERMPOL Review Committee concluded that the tug escort system would enhance tanker safety.
Northern Gateway estimated that safe operating speeds for the tankers would be between 8 and 12 knots, with an average speed of 9 knots. It said that, if a tanker were to lose propulsion while transiting the Confined Channel Assessment Area, but still had steering, it would be possible to maintain course independently or with the assistance of an escort tug. Depending on whether the vessel was laden or in ballast, an escort tug would, or could, be tethered to the tanker to slow, steer, or stop the tanker. If a tanker were to lose steering, the ship could be slowed to a stop by the escort tug. It said that modern tractor escort tugs are able to steer a ship while stopping it. Northern Gateway's experts said there are alternative ways of stopping a ship, and that the quickest way to stop a ship is to complete a sharp turn as compared to a straight-on stop. Such maneuvers could be safely completed in the narrowest parts of the proposed shipping routes. Northern Gateway said that computer simulations also demonstrated that escorted oil tankers operating at these speeds would have time to complete safe and controlled maneuvers.
Northern Gateway outlined the current and proposed training program for tug masters and pilots. In addition to computer simulations in which these individuals participated, it said that pilots and tug masters already have considerable training and certification. The company said that British Columbia Coast Pilots are Transport Canada certified and complete a rigorous 7-year training program before they can pilot the largest design vessel. Tug masters would also have certifications issued by Transport Canada and considerable operating time on tractor tugs prior to receiving project-specific training. It said that the Pacific Pilotage Authority was already developing a plan for escort tug training that would be applicable to all energy projects proposed for the Kitimat area. This program could include both computer simulations and live trials.
Following extensive computer simulation training in other areas of the world, the final stage of Northern Gateway's tug escort and pilot training program would involve the use of the project escort and docking tugs, and a tanker in the Suezmax to VLCC size range. Northern Gateway said that this training would be conducted on the planned routes with the tanker being configured to represent both ballasted and loaded conditions. There would be no oil cargo on board the tanker.
Northern Gateway has also committed to completion of a drift study during the detailed design phase of the project. The purpose of this work would be to evaluate the ability of escort tugs to rescue a vessel, disabled in the Open Water Area, that is at risk of running aground. In response to questions from the Panel, Northern Gateway said that the study would be conducted on a probabilistic basis. It said that the intent of the study would be to evaluate whether escort tugs should remain in the area, proceed to an anchorage, or continue to their next assignment.
Northern Gateway said that, because tankers are designed and classified to trade worldwide in all seasons, an assessment of weather operating limits seawards of the proposed pilot boarding stations is not required because tankers are designed to sail these waters in all conditions without tug escort or pilotage. While modern tankers are capable of operating in extreme weather in open water conditions, tanker operators generally avoid these conditions by means such as weather routing. It is a common industry practice to reduce speed on ocean passage to avoid arriving at a pilot station during periods of weather when it would be difficult to board a pilot and complete transit to port. Northern Gateway also simulated holding the ship on station, with or without tug assistance, and anchoring the ship, and said that these tactics could be safely accomplished.
Northern Gateway said that safe operational limits would be specified for vessels associated with the project. Operational limits are common at ports around the world, including Port Metro Vancouver, Sullom Voe in Scotland, and Alyeska's Valdez Marine Terminal. The company said that operational limits would be developed during the detailed design phase of the project in conjunction with operational stakeholders such as shipping companies, the Pacific Pilotage Authority, and Transport Canada. At that time project and vessel design would be in a more advanced stage and tug operators and pilots would have been trained under a variety of normal and emergency operational procedures.
Northern Gateway said that operational limits would be included in the Port Information Book and, consequently, form part of Northern Gateway's Tanker Acceptance Program. It said that transits of the Confined Channel Assessment Area would be subject to the approval of the shipmaster under the guidance of the pilots, and may be influenced primarily by wind. Operational limits would best be determined once pilot and tug master simulation training has been completed, and ship-owner representatives have been consulted. Northern Gateway said that wave conditions recorded in the Confined Channel Assessment Area would not impede tanker and escort tug operations in the channels.
Northern Gateway said that berthing and unberthing operations would be influenced by wind and currents. It said that operating limits may be reduced in the first year of operation and modified as pilots, tug masters, and terminal personnel gain experience.
In establishing operational limits Northern Gateway said that it would assess, among other factors, both the expected frequency of wave heights exceeding the established limits, and the rate at which waves could be expected to build. Northern Gateway committed to setting conservative vessel and operational limits so that, should an unforeseen condition exceeding the limits arise, safety would be maintained. One objective of the operating limits assessment would be to establish procedures to be followed in expectation of worsening weather conditions, to avoid conditions near operational limits. Northern Gateway said that it would be rare for unforeseen conditions to exceed operational limits. It said that such conditions would be forecast well in advance of a tanker's arrival or departure. If conditions potentially exceeding operational limits were forecast, an inbound tanker would delay entry into the Open Water Area, and an outbound would delay its departure from the Kitimat Terminal instead of entering the Confined Channel Assessment Area.
Figure 7.3 Escort Tug Model Design
Ocean-going escort tugs would be 46.9 metres long. They would have deep keels and powerful directional drives.
Northern Gateway said that the Environment Canada's marine weather program is a world class operation. In response to questions from the Haisla Nation, Northern Gateway's expert, a former tanker captain, said that most tanker companies also have their own weather routing services and that tanker captains are experts in interpreting weather forecasts to inform navigation decisions.
If environmental operational limits were to be exceeded after a tanker commenced its transit, the master and pilot would assess the available options and apply them as necessary to ensure the safety of the tanker. These options could include slowing and holding the ship in a suitable section of the channel, increasing speed to improve control, requesting assistance from another escort or harbour tug, or anchoring with a tug or tugs in attendance until the weather state abates.
Northern Gateway said that VLCCs are equipped with steering systems and equipment to handle much larger wind forces than they would be likely to experience in the Confined Channel Assessment Area. It said that, because much of the mass of a laden VLCC is below water level, it is not easily moved off course. It said that, conversely, cruise ships and liquefied natural gas carriers, where much of the mass is above water, would be more susceptible to a sudden gust of wind. The Pacific Pilotage Authority said that a deep laden vessel would not be affected by a high wind as much as a passenger vessel, light freighter, or a taller vessel such as a liquefied natural gas tanker.
Northern Gateway conducted extensive computer simulation studies of tanker transits and tug escort operations. It said that these studies indicated that VLCCs could safely navigate in Wright Sound at wind speeds up to 100 kilometres per hour. The studies also simulated an escort tug successfully towing a tanker in 45 knots of wind and a 4.5 metre significant wave height.
Concerns were raised through the letter of comment process and questioning regarding the effects on shipping safety and navigation of limited daylight hours along the shipping routes. Northern Gateway said that tankers would be operating in the Confined Channel Assessment Area with modern navigation technology, and that navigation could be undertaken safely 24 hours a day. It said that marine terminals in northern latitudes such as Kitimat, Scotland, Sweden, Norway and Alaska have operated for decades under similar conditions.
The Coalition, Haisla Nation, and others questioned Northern Gateway on the ability of tankers to operate in thick fog and poor visibility conditions. Northern Gateway said that tankers around the world operate in thick fog. Modern tankers have two operating radars with separate power sources, and two completely independent electronic chart display and information systems (ECDIS). Northern Gateway said that one of the radar systems is specially designed to operate in rain and snow. It said that there would also be escort tugs with redundant radar systems and the vessel would also be monitored by Marine Communications and Traffic Services on the Automatic Identification System. The company said that a tanker may reduce speed in fog in order to safely operate in limited or zero visibility. Northern Gateway said that the radar picture in the Confined Channel Assessment Area is excellent due to channel shape. Northern Gateway said that shipping has been carried out safely to Kitimat for two decades and that visibility was not raised as a concern in meetings related to the marine shipping quantitative risk analysis.
Northern Gateway's experts were asked to comment on whether they had ever experienced external environmental conditions such as snow, fog, rain, lightning, or static electricity that had caused a ship's navigational and tracking system to fail or to be severely impaired. In response, they noted the redundancy built into such systems and how they are designed to operate in all weather conditions. They said that they had never experienced a situation where all navigational ability had been lost. They said that, for example, in the event that geographic positioning systems signals were temporarily lost, there are alternative means of navigation available to the tanker master and pilot.
Northern Gateway and others said that human factors are responsible for a majority of marine incidents. It said that the contribution of human error to tanker incidents was considered in its marine shipping quantitative risk analysis. Northern Gateway outlined specific measures that it has taken to mitigate against human error that could potentially lead to a malfunction or accident. A team approach is proposed that includes mandatory use of pilots who are familiar with the area and with the ships. It said that the team is monitored by the ship's captain, the bridge team, and the escort tug. The masters and navigators of the tugs would be able to question the actions of the pilot. Marine Communications and Traffic Services would also be able to monitor the actions of the pilot through radar and the Automatic Identification System. Northern Gateway highlighted the need for appropriate qualifications and training and the fact that the shipping regulatory environment also addresses human error.
Northern Gateway identified the layers of redundancy in the marine transportation system it is proposing. It highlighted redundant navigation and steering systems on the tankers, as well as redundant navigation and propulsion systems on the escort tugs. It said that loaded tankers would be escorted by two tugs. Northern Gateway said that the harbour and escort tugs would also be subject to a safety management system that is a part of a third party independently audited system that covers all the management policies and procedures of the company responsible for operating them, including the vessels operating requirements and maintenance program.
The Panel asked Northern Gateway to comment on how confident it was that it could eliminate human error as a contributing factor to tanker incidents, and whether there was other mitigation that could be implemented to avoid incidents. They said that safety management systems in the marine shipping industry play a key role in reducing human error. Northern Gateway's experts responded that, although human error cannot be absolutely eliminated, regulatory changes and Northern Gateway's proposed mitigative measures would provide the best possible solution.
Marine shipping quantitative risk analysis
Northern Gateway assessed marine shipping risk through its marine shipping quantitative risk analysis, prepared as part of the TERMPOL Review process. Northern Gateway said that the consultant that prepared the quantitative risk analysis, Det Norske Veritas, is a marine classification society that specializes in marine risk assessment. Det Norske Veritas were selected independently of Northern Gateway by a roundtable of stakeholders and First Nations groups who also contributed to the scoping and development of the Terms of Reference for preparing the quantitative risk analysis.
It said that the quantitative risk analysis was prepared following international best practice from the International Maritime Organization's definition of a Formal Safety Assessment. It said that guidelines prepared by this organization refer to the use of the ALARP (as low as reasonably practicable) principle to select risk control measures. Northern Gateway's experts said that the quantitative risk analysis presented a very conservative assessment of potential shipping risks.
A hazard identification workshop was conducted as part of the quantitative risk analysis. This was a systematic, multidisciplinary, team-oriented exercise that required a group of experts to evaluate hazards, the likelihood of incidents occurring, and the probable consequences should an incident occur. The team first identified credible causes of marine incidents based on local knowledge. They then qualitatively assessed the likelihood and probable consequence for each incident that could occur as the result of the hazards identified. The team also evaluated the adequacy of preventative safeguards and mitigation measures. Northern Gateway said that the hazard identification workshop was followed by interviews with local stakeholders to gain further local knowledge of the proposed shipping routes.
The TERMPOL Review Committee's report said that the quantitative risk analysis demonstrated that the unmitigated risk for Northern Gateway oil tankers would be the same as, or less than, world averages for similar oil tanker and terminal operations in similar waters and conditions. The TERMPOL Review Committee concluded that Northern Gateway's risk reduction strategy would enhance the safety of the project's marine transportation components.
The marine shipping quantitative risk analysis estimated mitigated return periods for various sizes of spills from project tankers. The estimated return period for a spill of oil, condensate, or bunker fuel was 250 years. The estimated return period of an oil spill of any size was 350 years. The estimated return period for any condensate spill was 890 years. The estimated return period for "an oil spill of greater than 40,000 cubic metres" was 15,000 years. Northern Gateway said that a return period is an estimate of the time interval between similar events. Northern Gateway said that a return period is the mathematical inverse of probability. It also said that risk assessments like the quantitative risk analysis are not intended to specifically say what the probability of a spill is. They are meant to inform mitigation.
During the Panel's oral statement session in Kitamaat Village, Mr. Marsh provided an analysis of Northern Gateway's calculations of return periods and associated probabilities. Subsequently, Mr. Marsh submitted a letter of comment further outlining his position. In response to this information and to questions from the Coastal First Nations, Northern Gateway said that the probability corresponding to a return period of 250 years is 18.2 per cent in 50 years (the approximate project life), or an annual probability of 0.004.
In response to questions from BC Nature and Nature Canada and the Province of British Columbia, Northern Gateway said that the marine shipping quantitative risk analysis was completed as a requirement of the TERMPOL process and was not intended to be a tool for public communication. Marine risk assessments typically express spill risk in terms of a return period or annual probability rather than a probability over a fixed period of time. Northern Gateway said that the quantitative risk analysis was primarily intended to estimate relative spill probabilities to compare mitigation measures such as the use of the escort tugs.
BC Nature and Nature Canada questioned the data underlying marine vessel casualty statistics, and how it informed the quantitative risk analysis. In response, Northern Gateway's experts said that issues with the data set, such as underreporting of incidents, were addressed through other conservative assumptions built into the quantitative risk analysis. Northern Gateway said that the work was also quite conservative in that it assumed that equipment and safety systems did not improve over time. Northern Gateway's expert said that, in his experience, risks associated with increased ship traffic had always been outweighed by improvements in ship design and operations over that time period. The expert said that, based on his experience completing many marine risk assessments for different projects, the Enbridge Northern Gateway Project would have more risk mitigation measures in place than he had ever seen.
The Haisla Nation said that a viable and credible risk model may predict an extremely low probability of a major spill over the first year of operations, and yet, a catastrophic failure could still occur during this time frame.
In its critique of the quantitative risk analysis, the Raincoast Conservation Foundation said that the use of return period calculations was inappropriate, as they failed to address rare but catastrophic events. It said that, in theory, an accurate and statistically robust estimate of a 15,000-year spill return period would require about 45,000 years of observations on the transport of oil and the efficacy of mitigation measures.
In response to questions from C.J. Peter Associates, Northern Gateway said that the purpose of its marine shipping quantitative risk analysis was to assess risk and mitigation opportunities for the project, and not to judge risk acceptability. Northern Gateway said that a common way to assess acceptability was to apply the "as low as reasonably practicable" principle, where potential risk reduction measures are compared to the cost and the benefit of those measures.
Probability and consequence
In response to questions from BC Nature and Nature Canada and Environment Canada, Northern Gateway said that it had placed priority on assessing both the likelihood of a spill and associated consequences. It said that there are multiple factors affecting the consequences of a spill. Northern Gateway said it conservatively assumed that all areas in the Confined Channel Assessment Area and the approach lanes were at risk of being oiled in the event of a major spill. Northern Gateway said that any assessment of a major spill in the Confined Channel Assessment Area and Open Water Area would conclude that there would be adverse and significant effects on the marine environment and associated human use.
The Raincoast Conservation Foundation integrated spill probability and consequence on the proposed tanker routes by combining the probabilities used in the marine shipping quantitative risk analysis with potential effects on marine birds, marine mammals, and anadromous salmon in the Queen Charlotte Basin. It concluded that calculated risk to parts of the Open Water Area was higher when consequences to marine mammals and birds was considered in conjunction with probability. Results for salmon were more variable and showed that much of the Confined Channel Assessment Area and parts of the Open Water Area were higher risk.
The Gitga'at First Nation provided an assessment that concluded that any large spill in excess of 5,000 cubic metres, of either dilbit or condensate, would result in significant, adverse, and long-term lethal and sublethal effects to marine organisms. In response to questions from Northern Gateway, the Gitga'at First Nation confirmed that its work did not examine the likelihood of a spill occurring. It said that the purpose was to illustrate that the potential for shoreline oiling at Gitga'at harvesting areas could be demonstrated through simple modelling methods.
The Gitxaala Nation submitted a report on potential spill effects in Gitxaala Nation territory. It concluded that Northern Gateway had not adequately assessed the potential consequences of an oil spill. In response to questions from Northern Gateway, the Gitxaala Nation said that its work was intended to capture potential low probability, high consequence events, and did not assess the probability of a spill actually occurring.
The Gitxaala Nation said that Northern Gateway had not adequately considered Aboriginal people's perception of the risks associated with very low probability, but potentially catastrophic, events. The Gitxaala Nation said that, although there is no established best practice to take into account lay risk assessment, it is important to consider, as much as possible, societal values in the decision making process.
The Gitxaala also said that Northern Gateway's risk assessment techniques were not appropriate for catastrophic spills like the Exxon Valdez event. It said that catastrophic events could undermine the demographic, cultural, and socio economic integrity of the Gitxaala First Nation. It said that Northern Gateway's methods were more suited to assessment of non-catastrophic risks.
Northern Gateway said that, although incorporating people's perceptions into risk assessments is an important consideration, such factors can be beyond the control of Northern Gateway. It said that risk assessments must remain science-based.
The company said that it engaged communities to learn about their perception of risk. It said that the Canadian Environmental Assessment Act, 2012 required it to consider the environmental effects of malfunctions and accidents. It said that public opinion should be considered but should not influence the outcome of a science-based assessment.
Coastal First Nations said that Northern Gateway had not adequately considered unpredictable, low probability, high consequence events such as a worst case oil tanker spill. It said that Northern Gateway's probability-based methodology ignores the fact that rare events occur regularly and should be anticipated and mitigated.
Coastal First Nations said that it is not easy to compute very low probability, high consequence events. It said that it is easy to get a general idea about the possibility of their occurrence. It said that proper regulations and enforcement can mitigate these events.
In response to questions from the Gitxaala Nation, Northern Gateway distinguished assessment of effects resulting from malfunctions and accidents, from those resulting from routine operations. It said that assessment of routine operations is based on the likelihood that the activity would occur and, therefore, the environmental effects would occur and are predictable. The company said that, in contrast, assessment of malfunctions and accidents is based on hypothetical scenarios that are unlikely to occur during the life of the project.
Northern Gateway said that it assessed effects of routine operations after mitigation was applied. It said that assessment of malfunctions and accidents assumed that no mitigation was applied. The company said that this was to ensure that the assessment was conservative.
Environment Canada made a number of recommendations regarding the need for additional spill modelling. In response to questions from the Coalition, Environment Canada said that its recommendations specifically relate to the assessment of potential consequence of spills. In response to questions from the Haisla Nation, Environment Canada said that, although it had identified information gaps related to its area of expertise, different departments may have different perspectives.
Fisheries and Oceans Canada said that discussion of environmental effects associated with malfunctions and accidents needs to occur in a broad context including likelihood of a spill, oil fate and behavior, and exposure mechanisms. Fisheries and Oceans Canada said that the risk posed by the project to fish and fish habitat in the freshwater and marine environments can be managed by Northern Gateway through appropriate mitigation and compensation measures.
The Panel finds that the evidentiary record has provided it with the required information to allow it to come to determinations with respect to the matters below.
The Panel's views on Northern Gateway's approach to pipeline design and other mitigation intended to prevent spills are provided in Chapter 5.
The Panel is of the view that pipeline routing is key to avoiding pipeline spills or lessening potential effects in the event of a spill. The Panel notes that Northern Gateway proposed a reroute of the pipeline in the area of the Morice River due to potential spill concerns. Pipeline routing would continue to be refined during detailed design and as part of the National Energy Board's regulatory process. The Clore and Hoult Creek tunnels are further key routing measures to avoid pipeline spills. In the event of a spill in the tunnels, a spill containment system would substantially lessen potential effects.
At some locations along the planned right-of-way, the semi-quantitative risk assessment showed that the potential oil release volume would exceed Northern Gateway's 2,000 cubic metres release guideline. The Panel requires Northern Gateway's to conduct additional work related to emergency preparedness and response technology, and other site specific mitigation, at high consequence areas such as the Necoslie River, Pitka Creek, the Sutherland River, Duncan Creek, and the Kitimat River valley.
The Panel finds that Northern Gateway has incorporated appropriate mitigation in its design and operation of the Kitimat Terminal to avoid spills or lessen their effects through appropriate containment and recovery measures. Northern Gateway outlined mitigation, such as sump construction, dock curbing, and the use of drip trays to prevent potential spills from reaching or spreading on the water. It also committed to deploy booms around tankers during loading of oil.
Tankers associated with the project would be required to comply with existing regulatory requirements. The Panel notes that many of the issues pertaining to marine shipping navigation, safety, and spill prevention that participants raised in the Panel's process are addressed as part of the existing regulatory regime. Northern Gateway has also committed to exceed regulatory requirements through its marine voluntary commitments and would be held accountable for this.
The Panel recognizes the commitments made by Northern Gateway to implement, monitor, and enforce its marine voluntary commitments and its response to the TERMPOL Review Committee's report. The Panel finds that these voluntary commitments should be mandatory and enforceable as conditions under any certificates which may be issued under the National Energy Board Act. These conditions would be enforced by the National Energy Board.
Navigational challenges of the proposed shipping routes have been addressed or mitigated, and tanker design, safety, and inspection requirements are appropriate for the project. This view is informed by the Panel's consideration of the existing regulatory environment, including, but not limited to, the TERMPOL Review Committee's report, Northern Gateway's commitments, the Panel's proposed conditions, and other evidence received from parties.
The Panel notes that shipping on the West Coast currently takes place in the same geographic area and under the same tidal and weather conditions that have been discussed for the Enbridge Northern Gateway Project. Many of the weather-related comments that the Panel heard were made in the context of personal experiences in smaller craft such as fishing boats, and not in the context of a large ship such as an oil tanker or cargo vessel. The evidence indicates that there is a significant difference in the effect of wind and waves on smaller vessels, compared with the vessels proposed for the project.
The Panel recognizes that vessels associated with the project would typically be much larger than those currently operating in the Confined Channel Assessment Area. The evidence indicates that the routes are appropriate for safe navigation and maneouverability of large oil tankers. Also, large oil tankers, due to their design and size, are less affected by wind and wave conditions.
The Panel received a substantial amount of evidence related to marine shipping navigation, safety, and spill prevention. In addition to written submissions, such as written evidence and letters of comment, Northern Gateway, Transport Canada, and Canadian Coast Guard responded to numerous information requests from parties.
The Panel also heard from a number of experts in the areas of marine shipping navigation, safety, and spill prevention during the oral questioning phase of the hearing. These experts represented Northern Gateway, Transport Canada, and Canadian Coast Guard. The Panel finds that they possessed extensive knowledge and practical expertise in marine architecture, navigational safety, marine risk assessment, tug escort procedures, regulatory requirements, vessel inspection, pilotage, and handling of large ships including oil tankers up to the VLCC size. The views of these experts informed the Panel's consideration of the safety of marine shipping associated with the project.
Parties in the process questioned these experts extensively, including questioning on documents and issues that were already addressed as part of the TERMPOL Review Process. The Panel views this part of its process as a public review of marine shipping navigation, safety, and spill prevention associated with the project, supplementing the TERMPOL Review Process. The Panel has not identified anything in evidence that would lead it to believe that the findings and recommendations of the TERMPOL Review Committee were inadequate or in error.
The Panel was concerned that a tanker malfunction or accident may be caused by human error, and it questioned Northern Gateway's experts regarding system redundancy and other measures designed to combat human error. The Panel finds that mandatory and voluntary measures outlined by the company would reduce the potential for human error to the greatest extent possible.
The Panel heard many expressions of concern, particularly in letters of comment, in oral evidence, and in oral statements, regarding dangerous environmental conditions and navigational hazards on the West Coast. Tankers associated with the project would use established shipping channels currently used by large vessels. The evidence indicates that Northern Gateway has appropriately considered potential wind and wave conditions within project planning through wind and wave analyses and its commitment to establish operational limits for shipping and terminal berthing.
The evidence before the Panel indicates that shipping along the north coast of British Columbia is accomplished safely the vast majority of the time, in the absence of many of the mitigation measures that would be in place for the project. These would include reduced vessel speeds, escort tugs, redundant navigational systems, and avoiding congestion in the narrower parts of the shipping channels.
Routine pipeline and tanker operations were found to be unlikely to cause significant adverse environmental effects after mitigation in most cases. Environmental effects of routine operations are discussed in detail in Chapter 8.
The Panel was required to assess the environmental effects of malfunctions or accidents that may occur in connection with the project, and to determine whether such non-routine effects are likely to occur. The Panel focused on malfunctions and accidents that cause oil or condensate spills, and considered both the likelihood of a spill event happening, and the consequences of the spill if it happened. The Panel then considered whether any adverse consequences were likely to be significant. The Panel distinguished between small spills and large spills.
The Panel finds that small spills from the pipeline facilities, terminal, or tankers are almost certain to occur during the life of the project. The Panel finds that small spills are unlikely to cause significant adverse environmental effects. Northern Gateway said that there was a 93 per cent chance of a spill of some size from a tanker, the marine terminal, or the pipeline, in the first 50 years of project operation.
Small spills are not a part of routine normal operations, and would be caused by relatively minor equipment failure or human error. The location would likely be near project facilities such as pump stations, valves, or the Kitimat Terminal. Response personnel and equipment would be nearby in most circumstances. Product recovery would likely be effective, leaving a relatively small proportion of a small spill to be naturally dispersed and degraded. Remediation may be necessary. Environmental recovery would be relatively fast and complete, likely within weeks to months. Any chronic effects would be localized. There would likely be few if any effects to communities. It is possible, but not likely, that smaller spills could also result in significant adverse environmental effects depending on circumstances and success of cleanup.
In the Panel's view, a large spill would involve a volume of oil that spreads beyond the immediate spill area, would require medium to large-scale response measures, and may not be able to be effectively cleaned up. In this case, natural recovery would be the predominant means by which the environment is restored.
A large spill is not a part of routine operations, and would probably be caused by major or multiple equipment failures, probably combined with human error. A full-bore rupture from the pipeline would be an example of a large spill. In the marine environment, Northern Gateway's credible worst case scenarios of spills of 10,000 cubic metres and 36,000 cubic metres, and the Gitga'at First Nation's example of a 5,000 cubic metre spill, would all constitute large spills in the Panel's view.
The Panel finds that malfunctions or accidents leading to large spills from the pipeline facilities, terminal, or tankers are not likely and may not occur during the life of the project. The Panel accepts Northern Gateway's evidence that it can not guarantee that a large pipeline or tanker spill would not occur. In reaching this view the Panel considered the evidence discussed in Chapter 5 related to pipeline design and operation, and evidence related to the marine regulatory framework and Northern Gateway's commitments regarding navigation, safety, and spill prevention, including the findings and recommendations of the TERMPOL Review Committee.
The Panel finds that, in the unlikely event of a large oil spill, there would be significant adverse environmental effects, and that functioning ecosystems would recover through mitigation and natural processes. Product recovery for a large spill, particularly a marine spill, may not be effective due to the size of the spill or due to environmental conditions that limit effective recovery. A relatively large proportion of a large spill is likely to be naturally dispersed and degraded. Extensive remediation would be necessary, particularly in sensitive shoreline habitats. The time for environmental recovery would depend on the type and volume of product spilled, environmental conditions, the success of oil spill response and cleanup measures, and the extent of exposure of living and non-living components of the environment to the product spilled.
Recovery of different environmental components may occur over different time frames ranging from weeks to years, and in the extreme, decades. Effects to communities and commerce would be significant. Chronic effects are likely in some locations. Compensation would be required for affected persons and communities.
The Panel's views on risk associated with construction and operation of the pipeline and marine terminal are provided in Chapter 5.
Marine shipping is not without risk. Transport Canada said that the Canada Shipping Act, 2001 seeks to balance shipping safety and marine environment protection while encouraging maritime commerce. In its consideration of this risk for the Enbridge Northern Gateway Project, the Panel carefully considered the project design, proposed mitigation, and the Panel's conditions. The Panel finds that it is not possible to guarantee that a large marine spill would not occur. With this fact in mind, and having regard for the complete evidentiary record, the Panel has concluded that Northern Gateway, and the responsible regulatory authorities who participated in this review, have taken the steps necessary to minimize the risk of a large marine spill. The Panel finds that a large marine spill associated with this Project is unlikely to occur.
The Panel finds that the broad range of preventative measures, including those to reduce the risk of human error, committed to by Northern Gateway reduces the risk of a large spill to as low as practicable. The Panel also finds that, if a large marine spill was to occur, the use of human based spill recovery and remediation tools and natural recovery mechanisms would minimize the effects, to the extent feasible. In looking at all aspects of this Project, as proposed, the Panel is of the view that the spill risk posed by this project is manageable.
The Panel's view on the likelihood of a large marine shipping spill is not based on a specific number that attempts to provide an absolute indicator of the probability of a spill event. The Panel is of the view that it would not be appropriate to do so. The Panel is of the understanding that marine shipping risk assessments, such as Northern Gateway's quantitative risk analysis and the federal government's ongoing Canada-wide risk assessment for oil spills from ships, are intended to provide an indication of spill return periods or probabilities based on potential hazards, and to inform mitigation to address such hazards. These risk assessments are often conducted in the context of existing marine shipping.
The Panel finds that Northern Gateway's approach to its marine shipping quantitative risk analysis was appropriate and was properly applied in accordance with recognized methods. Northern Gateway's marine shipping quantitative risk analysis was a multi-stakeholder exercise completed in accordance with international best practice, by a consultant with recognized international expertise in marine risk assessment. It was considered as part of the TERMPOL Review process. The Panel does not accept parties' arguments that the quantitative risk analysis was improperly prepared or subject to substantial flaws.
In considering whether there is a manageable level of risk associated with the project, the Panel benefitted from the Gitxaala Nation's comments on acceptable level of risk. The Gitxaala Nation argued that the Panel must evaluate three distinct aspects of risk. First, was an appropriate risk assessment methodology chosen? Second, was the methodology properly applied? Third, does the result of the assessment constitute an acceptable risk?
Regarding the first two questions on risk assessment methodology, the Panel notes that for the marine shipping component of the project, Northern Gateway did not provide an overall risk assessment number that integrated probability and consequence. Northern Gateway's approach was to estimate return periods for spills in order to inform appropriate mitigation.
Northern Gateway also undertook a qualitative and quantitative assessment of unmitigated potential spill effects. Northern Gateway said that the true effects of a large oil spill are unknowable other than to conclude that they would be significant and adverse to people and the environment. The Panel finds that recognition of these potential consequences informed Northern Gateway's project planning to take a precautionary approach to reduce risks associated with marine shipping to as low as reasonably practicable. The Panel notes that Northern Gateway has developed mitigation assuming that all areas within the shipping approach lanes and the Confined Channel Assessment Area are at risk of being oiled.
Parties such as Coastal First Nations, the Raincoast Conservation Foundation, and the Gitxaala Nation said that Northern Gateway had not adequately considered low probability, high consequence events. The Panel does not share this view.
The Panel finds that Northern Gateway's approach to assessing risk is appropriate and that it was properly applied. The Panel sees little practical value in an alternative approach that would attempt to derive a hypothetical risk number as a fundamental decision point that indicates whether the project should proceed.
The Panel is of the view that a more practical approach is to determine acceptability of risk based on the totality and weight of evidence before it. This includes a combination of quantitative values, such as those determined through the marine quantitative risk analysis and ecological risk assessment, qualitative information such as the potential for natural recovery and learnings from past spill events, and the existing regulatory environment and mitigation that would apply to the project.
Regarding the Gitxaala Nation's third question, the Panel finds that the marine shipping component of the project presents a manageable level of risk taking into account Northern Gateway's mitigation and commitments, the Panel's conditions, and the existing regulatory environment.
Based on the evidence, the Panel finds that sufficient information has been provided regarding the potential occurrence of a low probability, high consequence event. The Panel accepts that there is a low probability of a large spill occurring. The Panel does not accept that a large spill is inevitable or likely given the available safety technology, management systems and the regulatory regime.
Northern Gateway's proposed emergency preparedness and response planning approach is illustrated in Figure 7.4. The company said that the General Oil Spill Response Plan would describe the overall planning framework. Detailed plans relating to marine shipping, the Kitimat Terminal, and the pipeline would be prepared within the general framework. Northern Gateway said that some plans are required by law and others would be voluntarily prepared.
The company said that the various plans would be integrated with each other and with the appropriate provincial and federal contingency plans. It said that its planned environmental protection and spill response capabilities would meet or exceed applicable government regulations and standards.
Northern Gateway said that the goal of its emergency preparedness and response programs is to minimize the effects of incidents and emergencies on the health and safety of the public, employees, property, and the environment. The company said that it envisioned a "world-class response capability" for the Enbridge Northern Gateway Project including the following elements:
Northern Gateway said it would establish a spill management team which would be responsible for spill readiness, training, exercises and drills, and implementation the General Oil Spill Response Plan and related project plans. The spill management team would interact with the Unified Command, when required, during a spill emergency.
Northern Gateway said that typical steps undertaken after a spill would include:
The company said that these activities could potentially all occur at the same time.
Northern Gateway said that it would develop its emergency preparedness and response plans following project approval, during the detailed design and planning phase of the project. It said that this would occur over the course of several years leading up to operation of the project.
Several parties expressed concerns about the timing of Northern Gateways detailed spill preparedness and response planning. They said that Northern Gateway had not provided sufficient information or an appropriate level of detail during the application process to demonstrate that Northern Gateway could respond effectively to a spill. They said that the company should provide additional information before the Panel made its recommendations regarding the project.
In response, Northern Gateway said that it had already provided a level of detail beyond what would be typically done, and that its level of commitment to the project was demonstrated in this. Northern Gateway said, and the Haisla Nation agreed, that the preparation of emergency response planning documents is typically done following project approval, and prior to project operation. Northern Gateway said that its emergency preparedness and response plans would be filed with the National Energy Board, and other regulators such as Transport Canada, at least 6 months before operation. It also said that it would engage other stakeholders such as the Province of British Columbia as it prepared the plans.
Figure 7.4 Main areas of Northern Gateway’s emergency preparedness and response planning
Many parties raised concerns with respect to the risks of an oil spill along the route. They had particular concerns with Northern Gateway's ability to effectively respond to such incidents in high consequence areas such as the Kitimat River valley. Northern Gateway said that it took a risk based approach to its consideration and preparation of emergency preparedness and response initiatives. Based on the results of the semi-quantitative risk assessment, it identified areas of higher risk from both a probability and consequence standpoint for enhanced emergency preparedness initiatives. Candidate watercourses identified included the Athabasca, Smokey, Missinka, Morice, and Kitimat Rivers, and Gosnell Creek. It said that other sensitive areas may warrant consideration for enhanced emergency preparedness initiatives even in the absence of a higher probability of release along the right-of-way.
Figure 7.5 Framework for Northern Gateway's Pipeline and Kitimat Terminal Emergency Preparedness and Response Planning
Northern Gateway said that, as part of its Emergency Preparedness and Response Program, it would produce the following plans and supporting documents for the pipelines and Kitimat Terminal during detailed design and planning:
Northern Gateway said that it would be guided in its oil spill response by these documents and plans.
Northern Gateway said that it would prepare an emergency response plan for construction activities, to be in place before construction.
Northern Gateway prepared a Framework for Pipeline Oil Spill Preparedness to support development of these plans and documents, and its Emergency Preparedness and Response Program overall (Figure 7.5). The framework identifies key elements associated with the development of a comprehensive emergency response program including:
Northern Gateway said that the third party assessment of its program would be a technical evaluation of the program and response capabilities developed by Northern Gateway. The third party would assess and validate that Northern Gateway had met its approval and regulatory requirements and any commitments made by the company during the review process. Northern Gateway said that the third party assessment is important in helping it achieve its commitment to world-class response capabilities.
The company said that it would look at new emergency response technologies over the next 5 years with the support of its emergency response groups. New technologies that meet the needs of the project would be implemented.
Northern Gateway said that, after safety, the first priority for spill response is to stop the source of the release and to limit the spread of the spill.
Northern Gateway said that its intent would be to respond immediately to all incidents, that cost is secondary in an emergency response, and it would bring all necessary resources to bear in order to address an incident. The company said that it would have access to Enbridge's spill response and spill management personnel in the event of a spill. Northern Gateway said that it would establish mutual aid arrangements with oil spill response agencies prior to operation, to ensure that adequate resources would be available to respond to large incidents.
Northern Gateway said that recovery rates of oil spilled from pipelines can vary depending on circumstances. It provided data showing that recovery rates from past spills of greater than 159 cubic metres (1,000 barrels) ranged from 22 per cent to 100 per cent.
Northern Gateway said that, for a spill to which it would respond with internal resources, its emergency response plans would incorporate a target of 6 to 12 hours for personnel to arrive at the site of the spill. It said that pump station personnel would be immediately mobilized, resources at equipment caches would be accessed, and other spill response agencies would be contacted. It would target a response time of 2 to 4 hours at certain river control points. The company said that circumstances could affect response times and the effectiveness of the response.
The Fort St. James Sustainability Group questioned Northern Gateway on its spill response strategies, practices, and learnings from the Marshall, Michigan incident. Northern Gateway said that its Incident Command System is an important focus for the company, and is used to organize spill response under a common structure, language, and planning process during an incident. It said that Enbridge operates and trains under the Incident Command System in a Unified Command structure, which would include regulatory agencies involved in the spill response. Northern Gateway said that Enbridge recognized the magnitude and impact of the Marshall incident and had changed its philosophy and focus to enable it to over-respond to incidents. Northern Gateway said that learnings from the Marshall incident are being incorporated into its emergency response plans.
In response to Douglas Channel Watch questioning on equipment availability, Northern Gateway said that, in addition to its own resources and capabilities, it would have access to the resources of other oil spill response organizations through mutual aid agreements and other local contractors. Northern Gateway said that it would train with these organizations so that, in the event of an incident, it would be able to use all these resources.
Douglas Channel Watch, the Province of British Columbia, Mr. Izzard, Friends of Morice-Bulkley, and the Haisla First Nation questioned Northern Gateway on the challenges of accessing remote areas of the pipeline and how this might limit rapid response and cleanup.
Northern Gateway said that a spill into a watercourse at a relatively inaccessible location would make cleanup and remediation difficult. It said that portions of the pipeline would be located in remote areas away from populated centers and roads. It said that most of the pipeline would be routed along existing linear disturbances such as roads and cut blocks, and that only a few segments could be considered truly greenfield or remote. It said that only 2.1 per cent of the proposed pipeline route in British Columbia would be more than 2 kilometres from existing road access. The company said that some relatively inaccessible areas had been avoided through route selection, and that the tunnels themselves could be used as access routes for response during difficult conditions such as in the winter.
Northern Gateway said that it would develop an access management plan for the pipeline, including specific access to river control points, as part of its tactical watercourse plans. It said that the access management plan would be informed by Northern Gateway's construction access plan, and that it would evaluate construction access from an emergency response perspective during planning. The company said that it had considered accessibility to valve sites during valve location assessment. It said that Enbridge's experience operating in remote locations, such as its Norman Wells pipeline in the Northwest Territories, would also inform access planning.
Northern Gateway said that new access for pipeline safety and emergency response would need to be designed with regard to potential disturbance of wildlife and traditional harvesting. The company would consider removal of unnecessary access as part of its linear feature removal and management planning.
The Friends of Morice-Bulkley said that limited access, habitat complexity, water velocity, and ice cover would make effective containment of a dilbit spill in the Sutherland River system difficult or impossible. Similar concerns regarding the Stuart River near Fort St. James were raised. The appropriateness of the river control point locations and their effectiveness in a response were also questioned.
Northern Gateway said that it would continue to update and validate access route information, river control point locations, equipment cache locations, right-of-way access, and high consequence areas for emergency response, as part of construction, operations, and oil spill response planning. It said that mitigation measures would also be considered where they could improve accessibility and spill response capability.
The Haisla Nation, Douglas Channel Watch, the Province of British Columbia, and the United Fishermen and Allied Workers Union questioned Northern Gateway on its ability to respond to spills during difficult seasonal environmental conditions such as winter and spring run-off. Northern Gateway said that conditions associated with heavy snow fall or spring melt have the potential to present additional challenges for containment and recovery operations, and response site access. The company said that:
Parties questioned Northern Gateway about locating and recovering oil under ice. Northern Gateway said that Enbridge conducts emergency exercises in winter and that Northern Gateway would learn from those experiences.
Northern Gateway outlined a number of oil detection techniques including visual assessment (at ice cracks and along the banks), drills, probes, aircraft, sniffer dogs, and trajectory modelling. It said that, once located, oil would be recovered by cutting slots into the ice and using booms, skimmers, and pump systems to capture oil travelling under the ice surface.
The company said that oil stranded under ice or along banks would be recovered as the ice started to melt and break up. It discussed examples of winter oil recovery operations during Enbridge's Marshall, Michigan incident, and said that operational recovery decisions would be made by the Unified Command according to the circumstances.
Northern Gateway said that equipment caches would be pre-positioned at strategic locations, such as the west portal of the Hoult tunnel. It said that decisions regarding the location or use of pre-positioned equipment caches would be made during detailed design and planning, based on a number of considerations including, but not limited to, probability of a spill, access, site security, environmental sensitivities, and potential for oil recovery at the response site.
The Haisla Nation and other parties questioned Northern Gateway about the effectiveness of booms and associated oil recovery systems in high velocity watercourses such as the Kitimat River. Northern Gateway said that oil spill response tactics are site-specific and incorporate multiple response sites. It said that current speed and water depth would be considered, and that response locations would be chosen for optimal containment and recovery potential. The company said that it would review new spill response technologies for fast-flowing watercourses during the detailed design phase, procure equipment best suited to the area, and incorporate appropriate strategies in detailed emergency response plans.
Northern Gateway outlined a number of techniques to contain spills on land and prevent them from entering watercourses. The company said that response options would vary depending on the local terrain and the potential for the oil to migrate through the soil. Soil, water, and groundwater contamination would require remediation. The Pipeline and Kitimat Terminal Oil Spill Response Plans would address risks to groundwater as part of the sensitivity and consequence area analysis. Remediation of land based spills would generally be completed to applicable environmental quality standards for the area and local land use.
Douglas Channel Watch asked Northern Gateway if it would be looking at the impact of a spill on aquifers, specifically in the Onion Lake Flats. It also asked about the effect of precipitation on groundwater contamination after a spill. Northern Gateway said that, as engineering studies progress and as the company collects additional geological information at the Onion Lake Flats, it would further assess the potential impact of a spill on the Onion Lake Flats aquifer. The company said that it would address the Onion Lake Flats area in its spill response planning.
The Panel asked Northern Gateway to undertake full-bore rupture modelling to demonstrate potential spill paths into watercourses for each 1-kilometre-long segment of the pipeline. In response to questions from the Province of British Columbia, Northern Gateway said that this modelling was not intended to show the fate of oil or its effects. Northern Gateway said that this work would inform spill response planning and help it understand approximately how far downstream oil could be expected to travel during the modelled time of 12 hours. Northern Gateway said that the modelling conducted as part of the pipeline ecological and human health risk assessment also provided an indication as to how far oil might travel.
In response to questions from Douglas Channel Watch, Northern Gateway said that the time to reach Kitimat for an unmitigated spill at Hunter Creek in the Kitimat River valley could range from 4 hours to a day, depending on flow conditions.
In response to questions from the Province of British Columbia and the Northwest Institute for Bioregional Research, Northern Gateway said that oil from a hypothetical full-bore rupture in the Clore River watershed would not be likely to reach the Skeena River estuary.
The Northwest Institute for Bioregional Research said that Northern Gateway's SIMAP modelling showed that an oil spill on the Morice River would result in oil exiting the last modelled grid at 60 kilometres. Northern Gateway said that a spill on the Morice River system would be likely to travel approximately 76 kilometres along the Morice and Bulkley Rivers, ending south of Telkwa and Smithers. The Northwest Institute said that, as the Morice is a lower gradient, more complex system than the higher gradient, canyon-walled Clore River, one could expect a spill in the Clore to travel further than in the Morice River.
In response to questions from the Province of British Columbia and the Panel, Northern Gateway said that it would conduct emergency preparedness and response training and exercises before project operation. It said that training and exercises would be integrated, and would include tabletop, field, and full scale exercises under an Incident Command structure, with a feedback program to support continual improvement.
Northern Gateway said that its spill management team would be activated approximately 1 or 2 years prior to operations to allow personnel to understand the project, regulatory requirements, the right-of-way, operational risks, and spill response strategies and plans. It said that exercises would be conducted approximately 1 year before operations to allow personnel to become familiar with specific areas and with the resources that would be used.
Northern Gateway said that, before operation, company personnel would have experience responding under conditions that might be encountered during a spill. Once the project is operational, the company said that personnel would continue to conduct spill response exercises dealing with a variety of locations, scenarios and response strategies.
The Province of British Columbia said that recovery and remediation of sunken oil is a major challenge in freshwater environments. The Haisla Nation said that Northern Gateway had not adequately considered the cleanup of submerged or sunken oils in its response planning, and that submerged and sunken oils were difficult to recover. Northern Gateway acknowledged that a spill could result in sunken or submerged oil, and that both situations pose their own spill response challenges. Northern Gateway said that there is industry and joint industry-government research to improve response capabilities for sinking oil. It said that the oil spilled at Marshall, Michigan, like the products that would be transported on the Enbridge Northern Gateway Project, are products transported throughout North America. The company said that one of the outcomes of the Marshall spill was a better understanding of how to respond to sunken oil.
Northern Gateway said that tactics to recover submerged and sunken oil may differ from methods used for floating oil, and may include water column and bottom sediment sampling, silt screens, weirs, dredges, and pumps. It said that specific tactics for entrained or sunken oil would be included in the Terminal and Pipeline operational Oil Spill Response Plans.
Northern Gateway identified a variety of possible response options for submerged and sunken oil in its Preliminary Kitimat River Drainage Area Emergency Preparedness Report. It said that a number of watercourses along the proposed right-of-way, including the Kitimat River, are considered fast flowing, but typically have slower depositional areas. It said that, after a spill, submerged and sunken oil tend to accumulate in depositional areas, and that these are the areas where containment and recovery tactics are most effective. It said that invasive techniques are available for remobilizing, containing and recovering sunken oil, and would be subject to a net environmental benefit analysis. Northern Gateway said that enhanced emergency preparedness initiatives for sunken oil would include pre-shoreline cleanup and assessment surveys, river substrate surveys, meteorological monitoring, sediment monitoring.
In response to questioning from Northwest Institute for Bioregional Research and the Friends of Morice-Bulkley, Northern Gateway outlined measures that Enbridge used to recover submerged oil in the Kalamazoo River during the Marshall, Michigan incident. These included:
Northern Gateway said that the techniques were effective in removing most of the submerged or entrained oil in the Kalamazoo River. It said that Enbridge continued to look for submerged oil using other methods, such as poles to disturb bottom sediments and release oil sheen, and sediment cores that could be examined for traces of oil.
The Province of British Columbia questioned whether the net environmental benefit analysis for recovery of submerged or sunken oil could show that the most appropriate response is to leave the oil in place. Northern Gateway responded that, in a net environmental benefit analysis, the advantages and disadvantages of available response options are evaluated, and then the response option that has the greatest net environmental benefit is selected.
Northern Gateway said that the decision to consider a net environmental benefit analysis during an incident is typically discussed with the appropriate regulatory agencies, including the Regional Environmental Emergencies Team led by Environment Canada, Unified Command members, Incident Command members, and the spill management team. It said that the decision is made during the contingency planning process and incorporated into operational plans after the majority of oil has been recovered.
The Panel asked Northern Gateway how net environmental benefit analysis was applied to the Marshall incident. Northern Gateway said that a scientific support group with expertise in the application of net environmental benefit analysis was involved in the analysis and the decisions. Northern Gateway said that a project-specific framework for a net benefit environmental analysis would be a component of the General Oil Spill Response Plan for the project.
Northern Gateway prepared the Preliminary Kitimat River Drainage Area Emergency Preparedness Report in response to concerns raised by various parties such as the Haisla Nation and the Kitimat Valley Naturalists. Northern Gateway said that, of all the watercourses along the pipeline route, the Kitimat River had the highest calculated probability of a full-bore rupture, due primarily to the geohazards in the upper Kitimat River valley. The report outlined Northern Gateway's considerations and commitments regarding enhanced watercourse response for high risk areas along the pipeline, as defined in the semi-quantitative risk assessment, using the Kitimat River drainage area as an example. Northern Gateway said that, during the detailed planning and design phase, other high consequence locations would be also be assessed.
The Preliminary Kitimat River Drainage Area Emergency Preparedness Report served as a case study identifying and describing response tactics suitable for watercourses, difficult conditions, and sites that are difficult to access, beyond the information contained in the General Oil Spill Response Plan. Northern Gateway said that the objective of site-specific response strategies was to minimize adverse effects on downstream resources.
Northern Gateway said that it would conduct pre-SCAT (shoreline cleanup assessment technique) surveys and mapping to support effective shoreline cleanup and assessment in the Kitimat River drainage. It said that standard shoreline cleanup assessment technique procedures have been used extensively worldwide to segment and characterize river and stream banks and shorelines. In response to questions from the Province of British Columbia and the Kitimat Valley Naturalists, Northern Gateway said that the information gained from these surveys can be used during an emergency response to guide access or to plan tactics for a particular reach of river.
The company said that it had already worked with the Province of British Columbia on pre-SCAT surveys for the marine environment, and that there is a comprehensive database for much of the British Columbia shoreline. Northern Gateway said that it has committed to these surveys for high risk watercourses and that consultation with the Province of British Columbia, First Nations and other stakeholders during detailed design could result in other areas being surveyed as well.
The Kitimat Valley Naturalists said that they were concerned about potential spill effects in the Kitimat River estuary. In response, Northern Gateway said that its pre-SCAT surveys and proposed countermeasures, such as containment sites in the Kitimat River valley, would be used to prevent migration of oil and protect the estuary in the event of a spill. It also noted its development of control points and protective booming strategies that would be put in place along the channels to protect downstream areas such as the estuary.
Northern Gateway submitted a preliminary example of a Tactical Watercourse Plan for the Kitimat River drainage area to demonstrate the process Northern Gateway has committed to for this and other similar high risk drainages along the pipeline right-of-way. Northern Gateway said that it would conduct enhanced meteorological and flow monitoring programs along high risk watercourses.
The Haisla Nation questioned Northern Gateway about sensitive areas along the Kitimat River and estuary. It asked whether the company would be able to protect features such as the District of Kitimat water intake and the water intake for the federal fish hatchery.
Northern Gateway said that, in developing the Tactical Watercourse Plans, and as part of its engagement process, it would work with communities to identify priorities and sensitive features such as water intakes to ensure that protective measures would be in place. It said that an early priority after an incident would be to notify downstream water users so that water intakes could be closed.
The Panel asked Northern Gateway to comment on the area of greatest uncertainty or vulnerability in the Kitimat River drainage area as it relates to emergency preparedness and response. Northern Gateway said that highly variable environmental conditions in the area could affect the success of a response. It said that its Tactical Watercourse Plans and pre-SCAT surveys would consider tactics for seasonal changes in weather and river flow. It said that its proposed training and exercise program, and enhanced meteorological and flow studies, would help to address anticipated environmental variation in the drainage.
Northern Gateway proposed a range of mitigative measures to minimize the consequences of a tanker spill. It said that tankers used to transport oil or condensate would fully comply with national and international regulatory frameworks, including the requirement for arrangements with a certified response organization, and the preparation and approval of a Shipboard Oil Pollution Emergency Plan.
Although Northern Gateway said it would not be the responsible party for ship-source spills, it voluntarily committed to extended responsibility for marine oil spill preparedness and response.
These commitments include:
Northern Gateway said that its Tanker Acceptance Program and associated Terminal Regulations would provide the means by which it would implement, monitor, and enforce its marine voluntary commitments related to spill preparedness and response. As an example, Northern Gateway said that a tanker owner, as the responsible party, would be obligated to make use of Northern Gateway's response capabilities.
Northern Gateway said that an effective emergency response program is essential to mitigate potential effects of a spill. It said that its commitments regarding marine response well-exceed regulatory standards and would place it within the top marine terminals worldwide. Northern Gateway also committed to an independent, third party audit of any response capability exceeding that which may be ultimately certified by Transport Canada.
Northern Gateway said that its response organization would be managed as part of its own resources or through contractual arrangement with an existing response organization. Northern Gateway said that it has already been in discussions with Western Canada Marine Response Corporation regarding the types of resources that would be required to meet its response commitments. It said that it was investigating the potential for coastal Aboriginal groups to participate directly in the response organization.
Response equipment would be located in caches at strategic locations along the coast and trained, locally based personnel and equipment would be available for immediate mobilization and deployment. In response to questions from the Kitimat Valley Naturalists, Northern Gateway said that there would be a 10,000 tonne response capacity in Kitimat alone, which would involve more response equipment than any other location in Canada. Northern Gateway also committed to a response capability of 250 tonnes at the Kitimat Terminal, which is in excess of the minimum response planning standard of 44 tonnes. Escort tugs would also have initial response capability in terms of source control and controlling the tanker movement.
In response to questions from the Province of British Columbia, Northern Gateway said that Transport Canada's Response Organization Standards address preparedness and not performance. It said that they should not be interpreted as a guarantee that the planned level of containment and recovery can be met under the conditions present at the time of the spill. Northern Gateway said that the intent of the standards and its related commitments is to ensure that the noted level of response capacity is in place. Its ultimate success would depend on conditions encountered. Similarly, the 6- to 12-hour response capability commitment, while realistic and based on weather data, is a planning standard that may vary according to actual conditions.
Northern Gateway made a number of commitments regarding follow-up and monitoring of environmental resources after a spill. As Northern Gateway would not be the responsible party in the event of tanker spill, the Panel asked the Government of Canada who would be responsible for oversight of these follow-up and monitoring commitments. Environment Canada responded that, for activities beyond those related to response and cleanup, the Regional Environmental Emergencies Team would have a limited role. Environment Canada and Transport Canada said that such commitments could be linked to any certificates that might be issued by the National Energy Board. They said that the various government departments would be open to further discussion of oversight of these commitments through mechanisms such as a memorandum of understanding.
Figure 7.6 Northern Gateway’s framework for marine oil spill response planning
Northern Gateway provided a framework for its proposed marine oil spill preparedness and response planning (Figure 7.6). It committed to engaging Transport Canada early in its detailed marine oil spill preparedness and response planning process.
Transport Canada noted regulations requiring Northern Gateway's plans to include response scenarios and details on training exercises. Transport Canada said that it would participate in the development of these exercises. Northern Gateway also committed to exercise its plans prior to operation of the Kitimat Terminal. Transport Canada recommended that Northern Gateway should ensure an oil spill response capability at the Port of Kitimat equal to or greater than that required for a designated port. It recommended that response times should be based on the assumption that Kitimat would be a designated port as this would increase local spill response resources. Northern Gateway agreed with this recommendation and said that its commitments for response planning actually exceed those required for a designated port in terms of capacity and required response times.
Northern Gateway said that its proposed Scientific Advisory Committee would inform its marine oil spill preparedness and response planning through research on containment, detection, and recovery of submerged oil, sunken oil, and high viscosity oil, under challenging conditions such as cold water, fast currents, and high waves. Northern Gateway said that, should the project be approved, the scope of work for the Scientific Advisory Committee would be developed and refined during 2014, and the research would begin after that. Northern Gateway also said that it expected that follow-up studies would be undertaken throughout the lifetime of the project.
Northern Gateway said that the purpose of a Geographic Response Plan is to guide spill responders during the initial phase of oil spill response in order to reduce adverse effects. Site-specific information is provided on a variety of factors that assist in the response. The company said that its Geographic Response Plans would identify priority protection areas, such as highly sensitive shoreline or shorelines at high risk of oiling, along the marine shipping routes, particularly the Confined Channel Assessment Area. Planning would be guided by a candidate sites work group.
Candidate sites, such as important bird areas, ecological reserves, and the Kitimat River estuary would be ground truthed to ensure that an effective response could be mounted at the site. These assessments would be informed by Northern Gateway's Coastal and Operations Sensitivity Atlases, additional fate and trajectory modelling, consultation with potential stakeholders and Aboriginal groups, and the Marine Environmental Effects Monitoring Program.
Northern Gateway said that Geographic Response Plans may also provide guidance for response at similar sites. It said that specific training and exercises would be developed for priority sites. The Geographic Response Plans would be updated over the life of the project based on these exercises and other changes over time. The Haisla Nation agreed that preparation of Geographic Response Plans is an important component of response planning.
In addition to the detailed information to be included in Geographic Response Plans, Northern Gateway undertook coastal operations and sensitivity mapping for the Confined Channel Assessment Area and the Open Water Area. Northern Gateway said that the purpose of this work was to help decision makers identify and prioritize the protection of areas in the event of an emergency response. Information included shoreline types, shoreline sensitivity, and information pertaining to response operations such as locations of airports, boat launches and anchorages. Northern Gateway said that the information was based on existing information provided by the Government of British Columbia and that the data would be further verified through ground truthing in collaboration with participating local Aboriginal groups.
Northern Gateway committed to the development of Community Response Plans. It said that the purpose of these plans would be to outline how specific members of the community might be involved in an emergency, their roles and responsibilities, and community training that would be needed. The company said that the Community Response Plans would also address issues related to traditional harvesting and related mitigation and compensation.
Northern Gateway said that, similar to a pipeline spill, a marine spill would be managed using the Incident Command System. It said that the initial incident commander would typically be the ship's captain, likely followed by the responsible party's representative, and ultimately, a Unified Command consisting of federal and provincial representatives and the responsible party's representative. Northern Gateway said that it also intends to participate in the Unified Command as this would be a condition of acceptance for tankers calling at the terminal.
Northern Gateway said that, in addition to natural dispersion and degradation, there are three response options for marine spills. These are mechanical recovery, application of dispersants, and in-situ burning. The company said that each of these options has specific windows of opportunity and operational limits. Figure 7.7 shows a summary of potential response options and operational limits, according to Northern Gateway.
Northern Gateway said that recovery of oil spilled in marine waters can be very low, ranging from 0 to 15 per cent of the oil spilled, depending on circumstances such as wind and wave conditions. It said that recovery may be much higher for a spill in the Confined Channel Assessment Area due to its sheltered nature and relatively lower wind and wave conditions. The company noted spills where recovery was as high as 90 per cent of the oil spilled.
An analysis conducted by the Haisla Nation indicated that weather and daylight conditions could potentially limit mechanical recovery of oil in the Open Water Area and Confined Channel Assessment Area for approximately half of the year, and 10 per cent of the year, respectively.
A Living Oceans Society's assessment showed that opportunities for mechanical recovery and dispersant application could be limited throughout the project area, depending on wind and wave conditions.
Northern Gateway said that these analyses were in general alignment with its own assessment. It also said that its initial assessments showed that an effective initial response could be mounted approximately 98 per cent of the time in the Confined Channel Assessment Area. The company said that there are very few times in the Confined Channel Assessment Area when wave heights exceed 1 metre, which is within operational limits. Northern Gateway said that new technology allows mechanical recovery operations in wave conditions as high as 2 metres. Northern Gateway committed to additional analysis to inform its equipment selection and response planning.
Canadian Coast Guard and Transport Canada said that the effectiveness of mechanical recovery can be limited by high winds and waves but there have been technology improvements in boom and skimmer systems in recent years that allow response under more difficult conditions.
The Gitxaala Nation said that technology and planning advancements may result in improved response for smaller spills but it said that for large catastrophic spills, the response would be largely ineffective.
Northern Gateway said that mechanical recovery of oil involves a wide range of equipment and techniques, with a combination of booms, skimmers and sorbents likely to be used. It said that mechanical recovery decisions would depend on the circumstances of the spill, including the type and volume of product, and environmental, operational, and logistical considerations.
Northern Gateway undertook tank testing to assess the potential effectiveness of dispersant use on synthetic crude and dilbit. The tests demonstrated that dispersants were likely to be effective on synthetic crude, and possibly dilbit, depending on the product and degree of weathering. Heavily weathered oils become too viscous to be dispersed effectively. Northern Gateway said that, as the dilbit it tested has the potential to emulsify in as little as 12 hours in winter conditions, it may become too viscous for chemical dispersion. Northern Gateway said that any additional dispersant testing would be conducted in consultation with Environment Canada.
Northern Gateway reviewed existing information on the potential effects of dispersant use on the environment. It said that any decision to use dispersants must use net environmental benefit analysis to compare potential environmental trade-offs. The company said that dispersant use can help protect marine mammals and birds by reducing their potential exposure to floating oil. It said that this benefit may come at the expense of a temporary increase in adverse effects to water column organisms from dispersed and dissolved oil and dispersant mixtures.
Northern Gateway said that it was interested in working with Environment Canada during detailed planning to identify zones or areas where pre-approved dispersant use may be considered. Northern Gateway committed to incorporating net environmental benefit analysis on an area-specific basis during detailed spill response planning. This work would be completed in consultation with Environment Canada.
In response to Northern Gateway's request for policy and legal clarification on the use of dispersants, the Government of Canada said that there is currently no approval or pre-approval process for the use of dispersants in Canada. It said that dispersant use can constitute a violation of the Fisheries Act and other legislation, and would only be considered on a case-by-case basis in consultation with the Regional Environmental Emergencies Team. The Government of Canada said that regulations regarding the use of dispersants are currently being considered. It said that, to date, Environment Canada had not conducted dispersant effectiveness tests for oil sands products in conditions which might approximate the Confined Channel Assessment Area and Open Water Area.
Northern Gateway said that large amounts of floating oil can be rapidly consumed and dispersed by burning. It said that the use of in-situ burning would depend on circumstances including weather, sea state, the thickness and degree of weathering of the floating oil layer, and environmental, health, and safety concerns. The company said that the residue created by in-situ burning is highly viscous and likely to sink. It said that, if the residue remains neutrally buoyant, recovery may be possible. Northern Gateway said that the amount of burn residue which could potentially sink would depend on the efficiency of the burn. It said that burning efficiency can be as high as 90 per cent.
Northern Gateway said that, in terms of toxicity, the burn residue is essentially benign. It said that airborne particulate matter from the burn can exceed air quality guidelines in the immediate vicinity of the burn. A decision to conduct in-situ burning of spilled oil would be in the context of a net environmental benefit analysis and with regard to the British Columbia/Canada In-situ Oil Burning Policy and Decision Guidelines.
Shoreline protection and cleanup
Northern Gateway said that, if spilled oil reaches a shoreline, or has the potential to reach a shoreline, it would implement shoreline protection and cleanup measures. Northern Gateway said that shoreline response would be guided by Geographic Response Plans and its coastal operations and sensitivity mapping. Nearshore protection can involve techniques such as exclusion or deflection booming, skimming, in-situ burning, dispersants, and diversion booming.
The company said that, if oil reaches a shoreline, cleanup would also be guided by a shoreline cleanup and assessment team, and subject to a net environmental benefit analysis, in consultation with the Regional Environmental Emergencies Team. Northern Gateway said that rocky headlands are less sensitive than cobble and gravel beaches. A variety of cleanup techniques could be implemented, including letting natural recovery take place. The company said that Canada's response planning standards require a response organization to have the capability to clean up 500 metres of shoreline per day.
Tracking and cleanup of submerged and sunken oil
In response to questions from the Coalition and others, Northern Gateway said that, like heavy fuel oils and heavy crude oils, dilbit is likely to become very viscous as it weathers. It said that this is expected by spill responders. It said that even very light oils, such as those spilled during the British Petroleum Deepwater Horizon incident, weathered into a viscous state with the appearance and consistency of peanut butter.
Living Oceans Society questioned the ability of available spill response technology, designed for recovery of conventional oil, to track and recover dilbit in temperate marine waters. It submitted an overview of spill response technologies for viscous oils that submerge which concluded the following:
Northern Gateway said that, under certain conditions, a portion of a dilbit spill may become entrained in the water column, submerge, or sink. It said that sinking would be most likely near shoreline areas if the oil takes on a sufficient sediment load. Northern Gateway said that there are challenges in responding to spills that have a high proportion of entrained, submerged, or sunken oil. It said that this can be the case whether the oil is dilbit, synthetic crude, or conventional crude oil.
Northern Gateway said that response organizations are set up to respond to heavy oil spills. It said that its response organization would also have the capability to recover submerged and sunken oil in nearshore areas.
Northern Gateway outlined technological advances in heavy oil cleanup. It said that there are booms designed for containing submerged oil. It also said that should oil be submerged, it would likely only be slightly overwashed and not likely to submerge to water depths greater than 3 metres.
Northern Gateway said that, in the unlikely event that oil were to sink in deeper waters, the oil would probably settle as a patchy distribution of small particles, which would be subject to subsequent natural degradation. Large "mats" of sunken oil on the ocean floor would not be expected.
In response to questions from the Haisla Nation, Northern Gateway said that the Environment Canada field guide for oil spill response on marine shorelines includes a section on submerged and sunken oil which addresses, among other things, the detection of submerged and sunken oils.
The United Fishermen and Allied Workers Union said that submerged oil from the Nestucca Barge spill proved very difficult to track. In response, Northern Gateway said that tracking and surveillance technology had changed since the Nestucca spill. It said that poor weather had precluded effective aerial surveillance of the Nestucca spill. It said that permanently stationed surveillance aircraft are now available on the West Coast. Transport Canada and Environment Canada confirmed that, although there can be limitations, the National Aerial Surveillance Program has the ability to track submerged oil. Similar technology was used in the British Petroleum Deepwater Horizon spill to track submerged, emulsified oil.
Figure 7.7 Potential oil spill response options and windows of opportunity for their use
These numbers are an approximation only.
Fate and trajectory modelling
To assist in spill response planning, Northern Gateway ran a fate and trajectory model for seven hypothetical spill scenarios at the Kitimat Terminal and in the Confined Channel Assessment Area and Open Water Area. A variety of scenarios, involving different volumes of spilled condensate, synthetic crude, oil, and dilbit were modelled. The largest spill modelled was a 36,000 cubic metre spill of dilbit in Wright Sound.
The model estimated the post-spill distributions of hydrocarbons in the air, water column, sediment, and on the shoreline. Maps were produced to show movements of oil or condensate in response to winds and currents under different oceanographic and meteorological conditions. Northern Gateway said that the fate and trajectory model was linked to the oil properties and fate model (discussed in Chapter 6). The company said that both the fate and trajectory model and the oil properties and fate model used actual time series of wind, water temperature, and air temperature data.
Environment Canada and the Panel requested that Northern Gateway undertake additional modelling for the same seven scenarios under opposite-season meteorological conditions, either winter outflow conditions or summer inflow conditions.
Depending on the scenario modelled, oil trajectories and fate were predicted for periods ranging from approximately 15 minutes to 15 days after the simulated spill. All scenarios were assessed assuming no spill response. The company said the wind was the most influential factor affecting the modelled oil trajectories. It said that tides had an influence on the initial movement of the oil and on small-scale movement at tidal periods. Northern Gateway said that the models could be improved by refining meteorological and hydrologic components.
In response to questions from the United Fishermen and Allied Workers Union, Northern Gateway said that, although its fate and trajectory models were run out to 15 days in some cases, model accuracy declines in longer forecasts. Northern Gateway said that, during an actual spill response, modelling results would be updated regularly with spill surveillance and tracking data, and with meteorological data from its weather monitoring stations. A Gitxaala Nation expert said that traditional trajectory models are typically only run out to 3 days, as wind forecasts are not accurate after approximately 3 days.
Environment Canada said that it had several concerns regarding Northern Gateway's fate and trajectory modelling and risk assessments. It said that it discussed these concerns and related topics with Northern Gateway during the Panel's process and in meetings outside the process. Environment Canada said that its observations regarding Northern Gateway's spill modelling work were provided with the goal of identifying opportunities to strengthen Northern Gateway's modelling and risk assessments as the project advances.
Environment Canada said that, in its current form, the response scenarios included in Northern Gateway's fate and trajectory modelling were of limited value for spill response planning and risk assessment because of uncertainties related to the behavior of the product in the marine environment. Environment Canada said that its review of Northern Gateway's spill modelling did not consider the probability of a spill occurring, as that is beyond Environment Canada's mandate and expertise.
Environment Canada recommended that Northern Gateway undertake additional spill modelling and risk assessment work under the guidance of the Scientific Advisory Committee. It recommended that the Scientific Advisory Committee include experts in a variety of disciplines including oceanography, meteorology, marine biology, oil spill chemistry, and behavioral and numerical modelling. Environment Canada recommended that additional spill modelling work focus in the following areas among others:
The Gitxaala Nation noted similar concerns regarding Northern Gateway's spill modelling.
Northern Gateway agreed with Environment Canada's recommendation and said that such work would provide important information for emergency preparedness and response planning, including the preparation of Geographic Response Plans.
BC Nature and Nature Canada, the Gitxaala Nation, and other intervenors asked Northern Gateway to undertake additional assessment of potential spill consequences, and integrate this information in its spill modelling and risk assessments. They asked that stochastic modelling be undertaken to better understand the ecological effects and significance of an oil spill.
Northern Gateway said that additional modelling would not alter its conclusion that a major spill in the Confined Channel Assessment Area and Open Water Area would have multiple adverse and significant effects to the marine biophysical environment and human use. It said that it also assumed that all areas in the Open Water Area and Confined Channel Assessment Area were at risk of being oiled in the event of a spill. Northern Gateway agreed that stochastic modelling could be useful to inform spill response planning and it agreed to consider it as part of its overall work on enhancing its fate and trajectory models.
Northern Gateway said that most of the key determining factors in an oil spill, such as oil type, spill location, time of year, time of day, weather and oceanographic conditions, cannot be controlled. The company said that, in addition to its measures aimed at preventing a spill from occurring, it was focused on enhanced spill response measures in the Confined Channel Assessment Area and Open Water Area.
Environment Canada and other intervenors said that Northern Gateway had not considered interactions between oil and suspended particles in its fate and trajectory modelling. Northern Gateway said that, except in nearshore areas, oil/suspended particle interactions are likely to account for only a relatively small percentage of the fate of spilled oil. It said that these processes are relatively unimportant from a fate and trajectory modelling perspective. The company said that it would examine the issue further as part of its enhanced fate and trajectory modelling to be conducted under the guidance of the Scientific Advisory Committee.
Trajectory modelling provided by the Gitxaala Nation suggested that oil could reach shorelines before a response organization could arrive. In response to questions from Northern Gateway, the Gitxaala Nation said that its modelling could inform future response planning or an alternative trajectory model could also be used. Northern Gateway said that the model used by the Gitxaala Nation was a relatively simplistic model that could assist spill response planning.
Timing of enhanced marine fate and trajectory modelling
Environment Canada said that its recommendations regarding additional spill modelling could inform both spill response planning and assessment of environmental consequences. It did not specifically recommend when the additional modelling should be done, and said that its recommendations were intended inform the Panel's deliberations. It said that the additional modelling should be completed before the project began operation and that it intended to participate in the Scientific Advisory Committee. It said that Northern Gateway had made specific commitments to provide the information, and that some of the information was more appropriate for detailed spill response planning. It said that another objective of its recommendations was to enable the Panel to propose conditions for the project.
Environment Canada said that proposed research on oil fate and behavior, which would inform fate and trajectory modelling, would not likely be com-pleted within the timeframe of the Panel's process. It said that a similar research program on the East Coast took place over a period of approximately 6 years, and it anticipated a similar time requirement for its recommended research program.
Northern Gateway said that it had provided sufficient modelling information for environmental assessment and other decisions to be made. It also said that additional modelling would be useful to support development of Geographic Response Plans and emergency response planning.
The Panel finds that Northern Gateway's extensive evidence regarding oil spill modelling, prevention, planning, and response was adequately tested during the proceeding, and was credible and sufficient for this stage in the regulatory process.
Parties such as the Province of British Columbia, Gitxaala Nation, Haisla Nation, and Coalition argued that Northern Gateway had not provided enough information to inform the Panel about proposed emergency preparedness and response planning. The Panel does not share this view.
Northern Gateway and other parties have provided sufficient information to inform the Panel's views and requirements regarding malfunctions, accidents, and emergency preparedness and response planning at this stage of the regulatory process. In reaching this view, the Panel took into account additional information filed by the company in response to the Panel Session Results and Decision document dated 19 January 2011 as well as Northern Gateway's commitments, conditions set out by the Panel, and the existing regulatory environment.
Information filed by Northern Gateway was also supplemented by extensive information filed by hearing participants through letters of comment, oral statements, and oral and written evidence.
Many parties said that Northern Gateway had not demonstrated that its spill response would be "effective." Various parties had differing views as to what an effective spill response would entail. The Panel is of the view that an effective response would include stopping or containing the source of the spill, reducing harm to the natural and socio-economic environment to the greatest extent possible through timely response actions, and appropriate follow-up and monitoring and long-term cleanup. Based on the evidence, in the Panel's view, adequate preparation and planning can lead to an effective response, but the ultimate success of the response would not be fully known until the time of the spill event due to the many factors which could inhibit the effectiveness of the response. The Panel finds that Northern Gateway is being proactive in its planning and preparation for effective spill response.
The Panel is of the view that an effective response does not guarantee recovery of all spilled oil, and that that no such guarantee could be provided, particularly in the event of a large terrestrial, freshwater, or marine spill.
The oil spill preparedness and response commitments made by Northern Gateway cannot ensure recovery of the majority of oil from a large spill. Recovery of the majority of spilled oil may be possible under some conditions, but experience indicates that oil recovery may be very low due to factors such as weather conditions, difficult access, and sub-optimal response time, particularly for large marine spills.
Although malfunctions and accidents may not be fully predictable, a precautionary approach requires that they be planned for. Specific details regarding the location, extent, and effects of a large spill cannot be known in advance because many relevant factors cannot be quantified. Sufficient information can be known in advance to allow planning, and response preparedness for a wide range of spill scenarios, including credible worst case scenarios.
Emergency preparedness and spill response related to the pipeline and Kitimat Terminal is under the regulatory and enforcement jurisdiction of the National Energy Board. Northern Gateway discussed how it intends to meet regulatory requirements and provided examples of its spill response planning documents.
The Panel finds that Northern Gateway has appropriately identified issues which are particularly important for the project for inclusion in its emergency preparedness and response planning process. These include issues such as access planning, response under challenging environmental conditions, identification of particularly sensitive and high consequence areas, and response measures for submerged and sunken oil. Northern Gateway's response planning would also be informed by input from the Scientific Advisory Committee and by review by an independent third party. The Panel finds that Northern Gateway's proposed response planning and mitigation is appropriate for the project.
The Panel requires Northern Gateway to report to the National Energy Board on implementation of its emergency response commitments. The company would be required to report on its:
To verify compliance with Northern Gateway's commitments regarding emergency preparedness and response, and to demonstrate that Northern Gateway has developed appropriate site-specific emergency preparedness and response measures, the Panel requires Northern Gateway to demonstrate that it is able to appropriately respond to an emergency for each 10-kilometre-long segment of the pipeline.
The Panel notes the concerns of intervenors regarding Northern Gateway's ability to respond efficiently and effectively to incidents in remote areas, and its plan to consider this during detailed design and planning. The Panel finds that Northern Gateway's commitment to respond immediately to all spills and to incorporate response time targets within its spill response planning is sufficient to address these concerns. Northern Gateway said that its emergency response plans would incorporate a target of 6 to 12 hours for internal resources to arrive at the site of a spill. It also said that it would target a response time of 2 to 4 hours at certain river control points.
The Panel agrees with Northern Gateway and several intervenors that access to remote areas for emergency response and severe environmental conditions pose substantial challenges. The Panel notes that the company has committed to develop detailed access management plans and to evaluate contingencies where timely ground or air access is not available due to weather, snow, or other logistic or safety issues.
The Panel accepts Northern Gateway's commitment to consult with communities, Aboriginal groups, and regulatory authorities. The objective of this consultation is to refine its emergency preparedness and response procedures by gaining local knowledge of the challenges that would be present in different locations at different times of the year.
Northern Gateway's access management plans would need to balance the effects on wildlife and traditional land use of existing and new access along the right-of-way. The Panel recognizes that Northern Gateway's intent is to be able to access the entire right-of way. The development of access management plans would involve consultation with appropriate parties. The Panel requires these plans to be in place prior to operation.
The Panel notes intervenors' concerns regarding how far an oil spill might travel downstream. The Panel finds that Northern Gateway has provided sufficient information indicating the potential extent of downstream oil transport. Northern Gateway has considered this information in its response planning. The extent of downstream transport would depend on particular circumstances associated with the spill.
Detailed design work and additional research and planning would be required, post approval, to further inform Northern Gateway's emergency preparedness and response planning. Additional information would also be required to ensure that Northern Gateway's emergency preparedness and response plans and capabilities are in place. The Panel's conditions regarding additional research and emergency preparedness and response planning would involve consultation with regulatory authorities, technical experts, Aboriginal groups, and communities potentially affected by an oil spill.
Emergency preparedness and spill response related to marine shipping is the regulatory and enforcement responsibility of federal departments, and not the National Energy Board. There is an established regulatory regime in place that requires oil spill preparedness and response planning for vessels which would transport oil or condensate in relation to the project. Northern Gateway has committed to file its marine oil spill preparedness and response plans with the relevant departments. The Panel requires these plans to be filed with these departments at least a year in advance to allow for adequate review and comment.
Northern Gateway's voluntary commitments regarding oil spill preparedness and response planning would exceed marine regulatory requirements. The Panel requires Northern Gateway to implement these commitments under any certificates which may be issued under the National Energy Board Act. The Panel finds that spill response capability that exceeds the regulatory requirements is appropriate for the project, given the potential consequences associated with a large marine oil spill.
The Panel finds that Northern Gateway's commitments represent a substantial increase in spill response capabilities beyond those required by existing legislation and currently existing on the west coast of British Columbia. They are based on international best practice and continual advances in technology and spill response planning.
Northern Gateway has committed to establishing a response organization with a 32,000 tonne response capability capable of having 1 major on-water recovery task force at the site of a spill in the Confined Channel Assessment Area within 6 to 12 hours, and at the site of a spill in the Open Water Area within 6 to 12 hours plus travel time. Northern Gateway's proposed response organization would be certified by the Minister of Transport up to 10,000 tonnes and the response organization would be subject to audit by an independent third party.
Northern Gateway said that all portions of the Confined Channel Assessment Area may be at risk of being oiled after a large spill, and it planned spill prevention and response measures accordingly. The Panel views this as a precautionary approach, as fate and trajectory models are only one tool to be used in spill response. Northern Gateway's commitments, including source containment, tracking and cleanup of submerged and sunken oil, and geographic response planning, would help mitigate potential effects in the event that on-water recovery is not possible and oil reaches a shoreline. Shoreline cleanup, as appropriate or practicable, would further reduce negative effects.
The success of oil spill response would depend on the circumstances associated with the spill, such as volume spilled, spill location, and environmental conditions. Canada's Response Organization Standards acknowledge that an effective initial response may not always be possible. They require demonstration of a response capability but not a guarantee that spilled oil will be fully recovered.
The Panel accepts Northern Gateway's commitment to conduct additional marine spill trajectory and fate modelling to support spill response and planning. Among other issues, this work would consider oil/suspended sediment interactions, discussed in Chapter 6. The modelling work would be informed by Northern Gateway's research program on the behaviour and cleanup of heavy oils, and is to be completed before project operation, under the guidance of a Scientific Advisory Committee.
The Panel notes that the use of dispersants as an oil spill mitigation measure is under the jurisdiction of Environment Canada. The Panel further notes that this is an area of ongoing development.
The Panel finds that some level of risk is inherent in the Enbridge Northern Gateway Project, and that no party could guarantee that a large spill would not occur. The Panel finds that a large spill, due to a malfunction or accident, from the pipeline facilities, terminal, or tankers, is not likely. The Panel finds that Northern Gateway has taken steps to minimize the likelihood of a large spill through its precautionary design approach and its commitments to use innovative and redundant safety systems, such as its commitments to address human error, equipment failures, and its corporate safety culture. These commitments and all others made by the company would be enforced under the regulatory regime.
Specific examples of design enhancements required by the Panel to reduce the risk of a large spill, discussed in this Chapter and Chapter 5, include:
The Panel finds that, in the unlikely event of a large oil spill, there would be significant adverse environmental effects, and that functioning ecosystems would recover through mitigation and natural processes. The Panel finds that a large oil spill would not cause permanent, widespread damage to the environment. The extent of the significant adverse effects would depend on the circumstances associated with the spill. The Panel finds that, in certain unlikely circumstances, a localized population or species could potentially be permanently affected by an oil spill. Past spill events indicate that the environment recovers to a state that supports healthy, functioning ecosystems similar to those existing before the spill.
It is the Panel's view that, after mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions or accidents is very low.
The Panel is of the view that Northern Gateway's research commitments regarding the behavior and cleanup of heavy oils spilled in aquatic environments, and enhanced fate and trajectory modelling, would further inform emergency preparedness and response planning for the project. This research would also contribute to other current and proposed research activities in both the public and private sector.