Questions and Answers
Q: What are conditions?
A: Conditions are requirements for a project. If the proposed project is approved, the conditions will form part of the certificate(s) that the National Energy Board (NEB) will issue and enforce. Northern Gateway will have to comply with these conditions.
The Joint Review Panel has authority under section 52 of the National Energy Board Act (NEB Act) to set the conditions directly related to the pipelines being applied for. It also has authority under the Canadian Environmental Assessment Act, 2012 (CEAA, 2012) to recommend conditions relating to mitigation measures and follow-up programs that the Governor in Council will establish under that Act.
Conditions can mitigate the risks and effects posed by a project so that it is designed, constructed and operated in a safe manner that protects human health and the environment. Some examples of conditions that may be imposed relate to, for example, engineering requirements, oil spill response requirements, restrictions on the timing of construction, and completion of studies such as traditional land use investigations. Conditions are typically organized by timing - either before construction, during construction, and before or during operation of the project.
The National Energy Board is responsible for verifying and enforcing compliance with each condition that is attached to the project. There is a range of enforcement tools available to the NEB.
Q: Why are conditions relating to abandonment not included?
A: Potential conditions related to abandonment are not included at this time because a separate application to the NEB is required at the time of the proposed abandonment. Upon application, a public hearing is required. Landowners and those potentially affected will receive a notice of the proposed abandonment, the hearing process, and how they are entitled to participate. Abandonment requires compliance with all conditions set by the NEB during the abandonment hearing and all other applicable regulatory requirements.
Q: Why are conditions released before the recommendation on the Project has been made?
A: Releasing potential conditions while a hearing is underway is a standard step in the review process that is mandated by the courts. Potential conditions are released before the hearing process is complete so parties (intervenors, government participants and the applicant) may comment on the potential conditions during the final argument phase. Parties may also suggest additional conditions the Panel should consider for the final report.
The Panel has not made any decisions on whether or not to
recommend approval of the proposed project.
Circulating potential conditions is a standard step in the hearing process.
Q: How can the Panel decide which conditions to include when the questioning phase is still ongoing?
A: Potential conditions must be shared before final argument so all parties can provide comments. The potential conditions will not be finalized until after the close of final argument. The Panel may add further conditions based on the evidence still being collected from the ongoing oral hearing.
In final argument, parties can refer to any new information that is placed on the record following the release of the potential conditions and ask the Panel to address them in additional conditions. The Panel will consider this information when they finalize the conditions and make their final recommendations on the project.
Q: What information and input was considered in forming these conditions?
A: The potential conditions are based on evidence received to date, and include commitments the Applicant has made on the record.
Throughout the hearing process, the Panel has also heard from participants on ways to reduce negative impacts of the proposed project and make it safer through letters of comment, oral statements, oral and written evidence and through questioning. The Panel is an expert tribunal and uses its own review and analysis of the evidence and its experience in regulating pipelines to determine potential conditions for the project.
Q: Who can comment on the potential conditions and how can they do that?
A: Parties (intervenors, government participants and Northern Gateway) may submit comments to the Panel on the potential conditions. In addition to commenting on the conditions, parties may also comment, with reasons, on which Act (NEB Act or CEAA, 2012) particular conditions should be made under.
Comments on the potential conditions must be filed with written final argument as outlined in Procedural Direction #12 [Filing A49564]. The filing deadline is 12:00 p.m. Pacific Time (1:00 p.m. Mountain Time) on 31 May 2013.
Q: What happens to the conditions after the comments are received?
A: The Panel will review all comments received including during the final argument process. The Panel may make changes to the potential conditions based on the entire evidentiary record and its own analysis. The Panel will issue the conditions with the final report on the project.
Q: Why are conditions important and included in the final report?
A: Regardless of the recommendation put forward by the Panel, conditions must be included in the final report. This is a requirement for all reports under section 52 of the NEB Act. Conditions direct how a project must be constructed or operated.
Q: Can the conditions in the final report be changed by the government?
A: According to the NEB Act, the government cannot alter the conditions put forward by the Panel. The government can, by order, refer any of the terms and conditions outlined in the report back to the NEB for reconsideration. The NEB would then decide whether to make a change to the conditions.
Conditions which the report recommends under the CEAA, 2012 can be altered or supplemented by the government.
Q: What will happen if the federal legislative framework applicable to the proposed project changes?
A: The potential conditions reflect the current federal legislative framework. Should legislative changes come into force prior to release of the Panel report, the Panel would review the impact of these changes on the potential conditions.
Q: What happens to the conditions after the government makes a decision on the project?
A: If the project is approved, the conditions are attached to the certificates that would be issued by the NEB. The company must comply with all conditions set out in the certificates. The NEB is responsible for verifying and enforcing compliance with all of the conditions. If conditions are not met, a company may not be able to begin various stages of construction or operation, and may also be assessed administrative monetary penalties.
Q: How does the NEB determine compliance with conditions?
A: Companies must submit ongoing documentation or filings with the NEB to demonstrate that they have met each condition. The NEB evaluates this information against the specific requirements that must be met for each condition. It follows up with the company if more information is needed. This can occur through both formal (e.g, letters) and informal (e.g., e-mails, phone calls) means. Meetings between the NEB and the company about particular conditions can also take place.
Only when the NEB is satisfied that the information meets the requirements of a specific condition will the company be authorized to proceed with the activities associated with that condition. Before the project can begin operating, the company must receive NEB approval through a “Leave to Open” application. Ongoing inspections and audits continue throughout the construction and operation of a project. The NEB is the final authority in all matters relating to compliance with conditions.
Q: Where can I find examples of conditions the NEB has placed on other projects?
A: Conditions for past projects can be found in past Reasons for Decision documents or in the Recommendation Reports that are sent to government for other projects. These documents are available on the NEB’s website at www.neb-one.gc.ca.
The draft conditions [Filing A51250] for the Northern Gateway project can be found on the public registry.