Argument in Chief EXECUTIVE SUMMARY for  the
January 22, 2019 i

The National Energy Board (NEB) placed no new permit conditions on the Trans Mountain Expansion Project (TMX ) and proposed downgrading of the existing permit condition 131 to a recommendation (a non binding discretionary activity). NEB proposed that TMX permit condition 133 be strengthened with a new obligation on TMX to provide escort tugs to accompany Aframax tankers as far as Juliet Buoy at the western entrance the Strait of Juan De Fuca instead of the tug escort ending at Race Rocks as is the current practice. The Friends of Ecological Reserves (FER) supports adding tug escort to J-Buoy and understands this means these will need to be larger sea going tugs deployed. This is a significant improvement which will help mitigate the risk of tanker groundings and a dilbit spill in the rough waters of the western entrance of the Strait of Juan De Fuca. The Board of FER suggests additional permit conditions are warranted and outline these below.
We recommend to the NEB that Permit condition 131, which is a public outreach program focused on marine safety and tankers, be amended to become a public outreach program extending information on what the public should do and know in the event of a dilbit spill as dilbit is a toxic substance and a hazard to human health. By the NEB’s definition “The purpose of conditions is to mitigate potential risks and effects associated with a project so that the project can be designed, constructed, operated, and abandoned in a safe manner that protects the public and the environment”.
A public pre-spill outreach program is a modest recommendation in our view, and a necessary condition that NEB needs to include in the TMX permit conditions as there are no such conditions now. The need for the re-emphasis of condition 131 is grounded in the principle that risk bringers (TMX) have an obligation to help manage the risks they bring and that TMX can treat this as a cost of doing business.
FER recommends that NEB refocus permit condition 131 to be retained and that an extension continue this year and all subsequent years that the project is shipping, with wording such as;
“at least 3 months prior to commencing operations,
A summary of Trans Mountain’s consultation with Health Canada regarding a public outreach program on what to do in the event of a dilbit spill, and
Undertake a public outreach program to mitigate risk to public health, including:
i) the resources and information that Trans Mountain will provide or will present annually at public awareness forums, to clarify what to do and what not to do when there is a spill of toxic substance such as dilbit;
ii) the schedules of activities or presentations/workshops with fishing industry organizations, commercial and recreational vessel operators, marinas, Aboriginal groups, Municipal councils and first responders forums, schools and universities affected by a dilbit spill.
iii) any issues or concerns raised by Health Canada, Worksafe BC, Municipalities and how Trans Mountain has or will address these.”
The Board of FER seeks through these hearings, an end result that shifts shipping lanes away from the Victoria waterfront to better mitigate risk to human health and mitigate tanker spill risks to

Race Rocks, Trial Island and Oak Bay Islands Ecological Reserves. A more offshore shipping lane increases the time available to assist floundering tankers and prevent a grounding and increases the time available to deploy for an open ocean spill. Groundings are more likely to occur with the current nearshore tanker route to Brotchie Ledge pilot drop off area, near Ogden Point Coast Guard pilot boat anchorage. Three course changes are now needed for all shipping and this may increase the risk of collisions over more direct shipping lanes south of Constance Bank but still within Canadian waters. The NEB is aware of this important mitigation option available to Transport Canada (TC), but NEB mentions only lateral shifts in current shipping lanes within the context of a noise mitigation strategy in the Strait of Juan De Fuca and Haro Straits for Southern Resident Killer Whales. We recommend NEB add to their recommendation 7 to Governor in Council (GIC), the following wording: “movement of shipping lanes further offshore along the Victoria water front to south of Constance Bank”.
This request fits with the Ocean Protection Plan (OPP) with goals stated as “an initiative to prevent incidents and accidents, while enabling rapid science-based response actions in the event of a spill” TC has indicated a willingness to look at this but has not made a commitment on timelines hence the request to NEB to make GIC aware of this mitigation option to reduce spill risk and improve human health.
We seek from the NEB, inclusion of TMX permit condition(s) that establish a financial obligation for TMX. A TMX permit condition to support long-term research and monitoring to improve marine research and baseline environmental monitoring over the life of the TMX project. We reason that such a long-term commitment is necessary to understand how to manage dilbit risk and ecosystem restoration prior to a dilbit spill. TMX and the oil exporters who use the pipeline, bring risk over the life of their project, so it is reasonable that the oil exporting industry remains involved with research to understand how to improve mitigation of their product. A long-term obligation to fund environmental research, improvements in spill modelling, toxicity, monitoring and recovery/restoration options is a legitimate business expense and this must be a new permit condition.
We seek from the NEB, a TMX permit condition that establishes a formal and multi-stakeholder collaboration forum for long-term research and monitoring of marine ecosystems linked to dilbit and spill recovery along the lines of the Habitat Conservation Fund Foundation (HCTF).4 A Marine Conservation Trust Foundation (MCTF) should be included for the duration of the TMX project as a permit condition managed by a multi-stakeholder oversight board with representation from Federal, Provincial, State Agencies, First Nation governments, TMX and the ENGO community. The forum would have no single agency controlling the research and monitoring agenda, with no discretion to withhold or vet findings. This forum would encompass research priorities that are mutually agreed on between stakeholders, and where marine projects are proposal-driven, evaluated and awarded against known strategic research and monitoring priorities. The scope of such a program would be scaled similarly to HCTF with a $10 million/year budget. This is the same size as the Exxon Valdez Oil Spill Trust Council and their annual $10 million/year US budget which is still monitoring and restoring Prince William Sound 30 years after the oil spill. We provide a possible governance structure diagram.
4 https://hctf.ca/ Funded by a surcharge on hunting and fishing licenses. Allocates funding to fish and wildlife project province wide. HCTF manages $10 million/year program.

These reconsideration hearings have re-enforced the need for such long-term research and monitoring and an environmental forum with a reasonable degree of independence from government and industry. This proposed forum is also consistent with three of the 4 pillars cited by the Federal Agencies in the Oceans Protection Plan (OPP) namely; Pillar 2: Preservation and Restoration of Marine Ecosystems-Habitats, Pillar 3: Strengthening partnerships and launching co-management practices with Indigenous communities, and Pillar 4: Investing in oil spill research and spill response methods. The formal standing multi-stakeholder forum that FER seeks would be complementary to and not in competition with the Federal Agencies projects, and focused on dilbit recovery in the marine environment. It does place a burden on TMX which is legitimate, as the risk bringers need to contribute to research on understanding how to manage the risk they bring. Research and monitoring should not be entirely born by the Federal Agencies and Canadians on behalf of TMX which will be the case if the NEB does not transfer any obligation to TMX.
The permit could read as follows: “TMX will, 3 months prior to commencement of shipping, provide, in trust, an amount of $10,000,000 renewed annually over the life of the project to support a marine research and monitoring program to address dilbit risk, environmental toxicity and ecosystem baselines and recovery. This program will be administered through the establishment of a Marine Conservation Trust Foundation steered by representatives from Federal, Provincial, State Agencies, First Nation governments, TMX and the Environmental Non Government Organizations (ENGO) community to ensure completion of a strategic plan, annual reports, awarding contracts for research and monitoring and timely disclosure of research and monitoring information.”
These hearings have clarified the inadequacy of the current arrangements for responding to a dilbit spill. We support the NEB recommendation to the Governor in Council (GIC) that a review of the 1995 Response Organization (RO) standards be undertaken by Transport Canada. We recommend that such a review be more strongly worded by the NEB. For example, that new RO standards be in place before the Western Canada Marine Response Organization (WCMRC) permit renewal occurs in 2019 and that new RO standards be in effect before increased TMX shipping begins when the pipeline is operational.
The current standards set the capacity for WCMRC capability to 20% of an Aframax tanker. We note also an absence of any reference by the NEB in their recommendation to GIC of the zoning locations along the tanker route, which dictate acceptable RO-timing windows which drive RO-equipment requirements for the RO. We also note that Transport Canada may not change zoning, even if there are new RO standards. There is, through zoning, a 6-hour response window for Vancouver designated by TC which means that the RO must have a greater capability in Vancouver compared to the zoning for the Gulf Islands and waters along the Saanich Peninsula which specifies a 32-hour response window. Not only do Southern Resident Killer Whales (SRKW) spend more time in the areas with longer response times, but there are many high value habitats such as Ecological Reserves, as well as 400,000 people in the longer response window area. It is unclear that new TC standards would change current zoning and achieve parity between Vancouver and the Vancouver Island portions of the dilbit shipping route. We advocate for a 6-hour response window and sufficient RO capability to deploy in this time for the Vancouver Island portions of the shipping route. We also advocate for the RO capability be set to deal with an entire cargo of an Aframax tanker. This would bring TC standards and zoning into equivalency with the RO standards in the State of Washington.

The NEB has another option besides the current one, which is to recommend to GIC that a review of TC RO standards be carried out. The NEB can provide a new permit condition that would bring the RO capacity for TMX to parity with the State of Washington standards. The NEB does not need British Columbians to wait for the Federal Agencies to go through a process and timeframe managed by TC.
We recommend that NEB place a permit condition for TMX to contract US-based ROs, which will achieve parity in response and capability with Washington State. The infrastructure currently exists in Washington State-based ROs to deal with the volume of an entire Dilbit tanker spilled within a 6-hour time period for the Washington State waters of the Strait of Juan De Fuca and on the stateside waters of the Salish Sea and Gulf Islands. An NEB condition requiring TMX to contract Washington State-based ROs would remove the uncertainty over TC’s ability to achieve higher standards in a timely manner before WCMRC certificate is renewed. This would also create parity in response time and capability between Vancouver Island and Vancouver. This would be a significant mitigation strategy and is immediately available to the NEB. It would show that the NEB more than understands the concerns of British Columbians who fear the risks they are being made to accept. The NEB would show leadership by including a meaningful condition that reduces the spill risks by 500% or more and does so in a timely manner.
The Permit condition would read something like: “TMX will have in place a contract with Marine Spill Response Corporation (MSRC) and Clean Sound Cooperative Inc.5 to provide their response capability in Canadian waters when needed, in order to deploy a response to a TMX tanker experiencing a dilbit spill incident in the same response time and with capability equivalent to that provided for tankers in State of Washington waters.”
Evidence provided by TMX on wind speeds strongly contrasts with wind speed data supplied by consultants on contract to other intervenors. Since the wind speed data determines whether there can be an RO deployment, TMX consultants cited wind speed data on estimates at Neah Bay that would enable deployment, 80% of the time in winter. However, apparently using the same raw data, other consultants estimated only a 22% winter deployment opportunity.
The summer deployment opportunity also differs with 98.5% of the time a deployment could occur (estimated by TMX consultants) but only a 50% deployment opportunity estimated by other consultants. We believe TMX, who work closely with WCMRC, are overstating their ability. What is truly troubling is that WCMRC is using wind speed data also to inform spill modelling and spread of oil on water. This highly different result supports the need for the arms-length research forum to drill through such different and conflicting results.
We conclude that the NEB does not yet have it quite right and there is a need to add the permit conditions recommended by the Board of FER. The resistance to this project by those opposed to taking the risk, will continue to be justified in our view because the mitigation provisions at the end of these reconsiderations remain inadequate to deal with the significant and long term risks the approval of this project brings. We have, in good faith, participated in the hearings and provided constructive measures for mitigation which we think the NEB should have no qualms adopting our recommendations as their own.
5 https://www.msrc.org/ MSRC is the largest, dedicated oil spill and emergency response organization in the United States.

We have included a summary of the wording changes we recommend for existing Permit conditions and also our suggestions to strengthen the NEB recommendations to the GIC.
The Board of Friends of Ecological Reserves is disappointed and surprised that only a single substantive permit condition has been proposed by the NEB as a result of the reconsideration hearings. We have provided additional practical measures and permit conditions that the NEB can place on TMX that afford greater protection for Canada’s marine ecosystems along the tanker route. The NEB has, in our opinion, not performed adequately in light of its mandate because it has shifted mitigation measures and decisions the NEB can and should make, back to the Federal Agencies and away from TMX where it more properly belongs. We do not think that, if tested again, the NEB has met the expectations to fully address marine transport risks from the TMX project that the Federal Court of Appeal sought.
We have provided what we believe are constructive measures that the NEB can make that would prove the NEB sought a more balanced outcome between TMX and the public interest. Meeting the public interest when approving a major project, by any reasonable measure, does not include making the public responsible for the costs and impacts by using their own funds as the NEB has done. We look to the final NEB report so we can understand if the Reconsideration Hearing achieved a more equitable balance for Canadians. We sincerely hope the NEB does some serious rebalancing in favour of Canadians

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.Argument in Chief-Final-Jan 22-2019