NEB fulfills expectations - approves Line 9 with a few reasonably good conditions

As most people expected, The National Energy Board issued its decision on Mar. 6 in which it gave Enbridge most of what it asked for. It gave approval to all 3 of Enbridge's 'asks'

  • Reversal
  • increase in capacity to 300,000 barrels per day
  • approval to carry dilbit

The one request that NEB did not accede to was an automatic Leave to Operate (LTO). This means that Enbridge will have to submit a separate application AFTER it has fulfilled all of the 30 conditions that the NEB has attached to the order. This could be interpreted as an acknowledgement by the NEB that Enbridge has a terrible reputation for ignoring regulations, and the NEB has put them on a short leash.

The conditions imposed do not include a hydrostatic test which virtually all intervors expressed support for. The Ontario government had requested this as one of its 7 minimum conditions of approval. DurhamCLEAR is urging the Province (through resolutions at local Councils to support these 7 conditions) to require Line 9 undergo a provincial environmental assessment since these conditions have not been met in any substantive way.

The failure to grant LTO leaves the door open a crack to still require a hydrostatic test - if the NEB is not satisfied with the information they've required Enbridge to supply.

Ontario's 2nd condition of an independent 3rd party review of Enbridge's engineerring and risk assessments was also rejected.

Also ignored was the request for $1 billion insurance coverage for cleanup costs. On this subject there was some disagreement on the NEB panel. One of them questioned Enbridge's financial ability to cover the costs of a major spill in a highly populated area like the GTA, but the other 2 overuled him - hence no required insurance coverage.

Ontario had also requested "an annual report on Line 9, including information about maintenance, spills and integrity testing."NEB Condition 26 sort of addresses this but only applies to the 1st 3 years of operation. However the condition is phrased to require Enbridge to report such activities to the NEB, with only indirect requirements to actually do them. It also makes not mention that the report would be public. This an issue with intervenors. Having spent a year researching pipelines, most information is indeed public but only if you know where to look.

The only really positive conditions set out by the NEB are #s 18 & 24. These require Enbridge to develop and update a specific "Watercourse Crossing Management Plan (WCMP) to establish a management plan identifying the current watercourse crossing conditions and demonstrating how Enbridge will proactively manage watercourse crossings along the existing line." It goes on to require a large quantity of detailed information on seasonal flows, bank profiles, sediment characteristics, floodplain delineation, etc.

This is work that Enbridge has never done before. In responses to our information requests, it was clear that Enbridge had zero information about any of the watercourses in Durham and that, in an emergency, it would have to figure it all out on the fly.

The flaw in this condition is that it is all to be filed with the NEB which would have no idea of whether it is complete or even valid. There should have been a requirement that it be submitted to local agencies for their approval. Local municipalities need to insist that they be kept in the loop and if not satisfied, let the NEB know in the strongest terms.

Ontario's 6th condition about Emergency response exercises is met in part by a few condions in the NEB's approval, but in reality, emergency response have always been covered in the NEB's own 'Onshore Pipeline Regulations' sections 32-35 which Enbridge has been ignoring for decades.

A general conclusion of most intervenors is that the NEB has destroyed what little credibility it still had. This decision might just as well have been made by Stephen Harper himself.

Ontario should be particularly upset. Line 9 is 95% in Ontario and except for that short section in Quebec it would have been clearly and exclusively in the jurisdiction of this province. Yet the NEB has ignored the requests of the province.

The fight continues to make this pipeline safe for the province, and for the residents and environment of Durham.