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NEB Ruling on Adequacy of Trans Mountain’s Answers Deeply Troubling

Earlier today, I issued a press release where I raised my concerns about the National Energy Board’s ruling on the adequacy of Trans Mountain’s response.

Before I dive into this issue however, please allow me to provide you with some background.

The National Energy Board (NEB) hearing process allows intervenors to submit questions to Trans Mountain concerning any aspect of the application they filed. As many of you will know, I submitted nearly 500 questions on a variety of topics, including the risks and impacts of a potential oil spill, Trans Mountain’s ability to clean up a spill and the extent to which the public on Southern Vancouver Island was consulted about the pipeline proposal.

In my view, the responses I got back from Trans Mountain were in many cases incomplete and inadequate, especially given the high-risk nature of this project. I therefore filed a motion with the National Energy Board (NEB), challenging more than 100 of the responses we received.

It is important to note that I wasn’t challenging answers I disagreed with. I was challenging answers that simply did not respond to my questions.

At the end of last week the NEB responded to all intervenors who had challenged answers they had received from Trans Mountain. Roughly 50 intervenors had submitted challenges to more than 2,000 responses that Trans Mountain had provided on the basis that those responses were incomplete and inadequate. The NEB ruled in favour of only a very small fraction (less than 5%) of intervenors’ requests for better answers.

Let me give an example of the type of answer I challenged, and which the NEB rejected.

Identifying whether or not diluted bitumen sinks is essential for determining whether or not we have the capacity to respond to a spill. An apparent contradiction arose when comparing the results from land-based dilbit tank experiments conducted by Trans Mountain with those undertaken independently by the federal government.

According to a federal government report published in November 2013, diluted bitumen has the potential to sink when it mixes with suspended sediments. Trans Mountain’s experiments were conducted in the absence of suspended sediments. Yet, our coastal waters are known to contain an abundance of them. In fact, next time you travel on a BC ferry from Swartz Bay to Tsawwassen, have a look at the water. The water originating from the Fraser River has a very distinct milky colour associated with its high sediment content.

In its ruling, National Energy Board concluded that my attempts to address the contradictory evidence “would not contribute to the record in any substantive way”.

Yet the BC government reports have made it clear that we currently don’t have the capacity to respond to a submerged oil spill and Trans Mountain has not proposed any measures to address this gap.

That the NEB can say that essential questions on the science underpinning whether Trans Mountain can even respond to an oil spill are not a ‘substantive’ contribution to the record should be alarming for all British Columbians. It is an unfortunate ruling that puts our coastline at unnecessary risk. And in the absence of proper oral cross-examination, it is decisions like these that make people seriously question the integrity of the entire hearing process.