CER hearing over Trans Mountain fire lanes set for this month
Trans Mountain wants to bypass the Burnaby's bylaws around fire access lane width, a matter that will be heard in a CER hearing on Jan 28
A dispute between Trans Mountain and the City of Burnaby over fire access lanes at the Burnaby Mountain terminal is expected to go to a Canada Energy Regulator hearing late this month.
The CER set a potential hearing date of Jan 28 for Trans Mountain’s application to bypass sections of the city’s building and fire services bylaws, naming both TM and Burnaby as participants.
Trans Mountain also sent out notices to provincial and federal attorneys general to give them a chance to participate in the hearing.
The CER gave governments until Dec 14 to respond. Neither BC nor the federal government will be participating in the process, while Alberta’s attorney general has reserved the right to participate.
According to a Dec 8 letter from the CER, letters of comment by interested parties had to be filed by Dec 23, with Trans Mountain submitting its reply to the City of Burnaby by Jan 5.
All participants will file their final arguments by Wednesday, Jan 12, with the hearing set for Jan 28.
Alberta sides with TMX
In its letter of comment, the Alberta government said it supports Trans Mountain’s motion.
“Specifically, Alberta agrees with Trans Mountain’s interpretation of the law and the manner in which Trans Mountain seeks to apply the law to the facts of this case, as Alberta understands them to be,” reads the letter, signed by Alberta Ministry of Justice lawyer Lillian Riczu.
“The Supreme Court of Canada has … indicated that measures which delay a federal project may seriously and significantly impair the core of a federal power.”
The Alberta government didn’t write a detailed argument, referring only in sweeping statements to precedents set by courts in the past. That includes a precedent stating the CER tribunal has the authority to rule on constitutional questions.
The constitutional question at hand is not an unfamiliar one to Burnaby and Trans Mountain, which have sparred on the issue multiple times, before both the CER and its predecessor, the National Energy Board.
Burnaby’s fight at the NEB even led to a 2017 decision from the province’s top court in favour of Kinder Morgan, then the owner of the pipeline and expansion project.
A long history with trees
Much of their dispute has revolved around tree removal permits, with Trans Mountain arguing the city had dragged its heels in approving the necessary permits to remove hundreds of trees in the pipeline’s path.
The city argued it was only going through the regular processes, but ultimately the CER, as with the NEB before it, found the city was causing undue delays through its tree bylaw.
This time around, Trans Mountain is seeking to bypass the city’s bylaws due to a disagreement over the width of fire access lanes at the Burnaby Mountain terminal that has delayed building permit approvals for months.
The federal Crown corporation argued the delays were over trivial matters and that the city was using its permitting process to once again stall construction of the pipeline.
The city, however, responded late last month to note the delays have been entirely due to failures by Trans Mountain to meet the city’s requirements.
The fire lanes proposed by Trans Mountain—as part of the expansion of the Burnaby Mountain terminal—would meet the requirements set out by the BC Building Code but not the requirements in Burnaby’s fire services bylaw.
Burnaby bylaws require a lane width of at least 7.3m and a turning radius of 13m, while the BC Building Code requires only 6m and 12m.
Fire Chief Chris Bowcock said the city’s requirements are a “bare minimum” and that he would have hoped for something above and beyond for a tank farm that stores such quantities of flammable materials.
He added that, while Trans Mountain argued the city’s requirements aren’t feasible, the Crown corporation hasn’t shown that to be true.
Trans Mountain has its own fire response system
In its counter-argument, filed on Jan 5, Trans Mountain said its designs for the Burnaby Mountain and Westridge Marine terminals “comply with the British Columbia building code … and meet the intent of” Burnaby’s fire services bylaw.
“While municipalities are permitted to adopt more stringent requirements than the Building Code, Burnaby has not provided any reasonable explanation for why more stringent requirements are needed for safe fire response at the terminals,” Trans Mountain argued.
The pipeline company noted this is particularly true “given that Trans Mountain is required to have site-specific fire response plans … and sufficient equipment to respond to a credible worst-case fire at both terminal locations, … independent of municipal firefighting support.”
“Even if Burnaby were to assist with fire response at the Burnaby Terminal or WMT, which it has stated it will not, Trans Mountain’s designs will provide safe access for Burnaby Fire department vehicles, sufficient area for deployment of its largest vehicles, and safe egress,” Trans Mountain noted.
Last spring, Trans Mountain conducted a fire drill onsite, and the CER found the company was able to get the necessary personnel and equipment ready to start fighting a fire within 2.5 hours. That was well within the four-hour target zone set by the CER, but Bowcock and local residents have expressed concerns about tank fires burning for that long without a response. And environmental lawyer Eugene Kung, with West Coast Environmental Law argued the city still needs fire access lanes, as a fire could easily spread beyond the property’s boundaries.
The reasoning for Burnaby’s fire access lane width is to allow at least 2m on either side of a vehicle for fire crews to stage, which Trans Mountain argued would require only 6.6m of width, with Burnaby’s widest fire engines measuring at 2.6m in width.
Challenges meeting Burnaby’s requirements
The company wrote that most cases in which the fire lanes are reduced to under 6.6m are due to Trans Mountain’s own fire response systems.
Trans Mountain said changes suggested by Bowcock to allow for 7m-wide fire access roads are “impracticable due to a number of site-specific circumstances, including terrain constraints, the layout of existing facilities, and the design of the secondary containment areas.”
“In particular, the steep terrain at the Burnaby Terminal required a non-traditional and complex design of the new hydrocarbon secondary containment tank lot areas,” Trans Mountain wrote.
To widen the roads, Trans Mountain argued, would require reducing the size of containment zones, which would “increase spill-related risks.”
At the Westridge Marine Terminal, the company said the vast majority of its proposed fire access lanes are 8m—above the 7.3m required—except for a 90m stretch that is only 6m. Trans Mountain again cited “challenging topography” as a reason for the narrow portion of road.
The CER tribunal hearing on Jan 28 will first hear cross-examination of Trans Mountain’s and the city’s witnesses, and Trans Mountain’s rebuttal evidence if there is any.
Then, on Jan 31, the CER will hear supplemental arguments from Trans Mountain, Alberta, and the city, before giving Trans Mountain the last word with a response to the city’s final argument.
The hearings will be broadcast live on the CER website. It’s not clear when, after the hearings, the CER panel will render a decision.