This image shows the new oil storage tanks being built relative to the existing tanks on Burnaby Mountain. (Trans Mountain)

CER permits Trans Mountain to skirt city’s fire lane requirements

The Canada Energy Regulator found the city's fire lane requirements to be an undue barrier to the pipeline and tank farm expansion project.

By Dustin Godfrey | March 1, 2022 |5:00 am

Trans Mountain has been given the go-ahead from federal regulators to skirt the City of Burnaby’s bylaws around fire lanes at its Burnaby and Westridge Marine terminals.

The Canada Energy Regulator (CER) released its decision late last week, after a hearing earlier last month, but still has yet to provide its reasoning.

In an email to Burnaby Beacon, UniverCity resident and member of Burnaby Residents Opposing Kinder Morgan Expansion Karl Perrin said the decision didn’t come as a surprise.

“Before the CER, the industry-captured NEB allowed Kinder Morgan to barely meet minimum standards, cut corners, avoid taxes, and ignore earthquake risks to the six fragile 1953 tanks, making Burnaby and the Salish Sea area a ‘sacrifice zone,’” Perrin wrote.

Third-party oversight

While the regulators gave Trans Mountain a pass on meeting Burnaby’s minimum fire lane standards, it also suggested the company seek clarity from Burnaby about whether it will continue to provide oversight and inspections on the project.

If Trans Mountain is “not able to obtain confirmation that the city will carry out its oversight, compliance, and inspection obligations pursuant to the bylaws, Trans Mountain must conduct independent third-party compliance verifications to the British Columbia Building Code, British Columbia Fire Code, and Canadian Electrical Code.”

But this provision did not offer much solace to opponents of the project. Perrin said he expected the company would “choose a toady engineering firm which will rubber stamp whatever Trans Mountain dictates to them.”

Eugene Kung, a staff lawyer with West Coast Environmental Law, said his concerns similarly were not particularly assuaged by the provision. And he added it would pile on even more costs to an already expensive project.

Trans Mountain announced a week prior to the decision its latest cost estimates for the project. As of February, the project is projected to run a total of $21.4 billion, up from the February 2020 estimate of $12.6 billion.

The fire lane dispute

The Burnaby Terminal, which is located on Burnaby Mountain, is getting a major increase in its capacity for storage, from 13 tanks to 26. Work is also being done on the Westridge Marine Terminal, located along the Burrard Inlet in North Burnaby, as part of the Trans Mountain expansion project.

The City of Burnaby had turned down Trans Mountain’s applications for building permits, citing non-compliance with its fire safety bylaws. In particular, Fire Chief Chris Bowcock argued that the fire lanes proposed by Trans Mountain did not meet the city’s requirements.

The fire lanes did, however, meet the requirements of the BC Building Code. Burnaby bylaws require a lane width of at least 7.3m and a turning radius of 13m, while the Building Code requires only 6m and 13m.

CER held a hearing on the matter last month, but the city opted not to participate. That was despite comments by Trans Mountain that non-participation would reflect poorly on the city’s arguments.

In particular, the company argued that it would implicitly demonstrate the city’s unwillingness to submit their reasoning to cross-examination.

The decision also bolstered Trans Mountain’s position that the city has unduly bogged down the permitting process.

It follows several successful motions by Trans Mountain to bypass the city’s tree bylaw when removing protected trees in the pipeline’s pathway.

Most recently, CER denied the city’s application to overturn an earlier decision giving the federally owned pipeline company the ability to bypass the tree bylaw in all future tree clearing operations.

Previously, Trans Mountain was required to apply to the city to remove protected trees—that is, trees with diameters of at least 20.3cm—and, failing that, apply to bypass the bylaw through CER.

Burnaby Beacon reached out to the city but did not hear back before deadline.

‘It’s not surprising’

Kung said the fire lane decision was disappointing but not entirely unexpected.

“I was hopeful to some extent that the CER would take the safety issues more seriously than previous bylaw issues, particularly around the trees,” Kung said.

“But at the same time, looking at how this issue has been dealt with in the past, in that sense, it’s not surprising. It’s just interesting how Trans Mountain continuously points to Burnaby’s attempts to enforce their own bylaws and ultimately protect their residents from fire as frustrating the purpose of the pipeline.”

Kung pointed to the company’s announcement that its costs had ballooned by 70%, saying those challenges have frustrated the project “much more than Burnaby, in my opinion.”

Kung didn’t offer much on the city’s decision not to participate in the CER hearing, noting any reason for doing so would be pure speculation.

And since the CER panel has yet to release its reasons for its decision, only releasing the decision itself for now, how much of a factor Burnaby’s non-participation played is still unknown.

But Kung noted there was plenty of concerning information in Bowcock’s sworn affidavit.

Asked whether he believed the city should have participated in the hearing, Kung said the “opportunity to cross-examine Trans Mountain’s evidence would have been interesting as an observer to see.”

The cases for and against

The long-term impact of the decision remains to be seen, but Kung said he personally has advised family members looking at living in the area around the tank farm to look elsewhere.

“It doesn’t matter what the price of the discount that there may be on that because of the safety risk,” Kung said. “That’s just me thinking about my niece growing up in that area.”

The fire lane dispute between the city and Trans Mountain has been ongoing since the company filed a motion with CER in December. Over close to two months, the two parties filed written arguments to support their position.

The city had argued it wasn’t putting any undue barriers in front of Trans Mountain, but rather expecting the “basic minimum.” And Bowcock noted in his affidavit that he would have expected more than that when it comes to fire safety for a project containing such large quantities of a highly flammable substance.

Trans Mountain countered that its proposal met the minimum requirements set out in the BC Building Code. And in any case, the company argued, fire lanes were redundant, with Trans Mountain building its own in-house fire response system.

The company noted the city would likely not be involved in responding to a fire at the tank farm as a result.

The city noted that, if this is true, then regulators need to hold Trans Mountain to an especially high standard when it comes to approving its fire response plan when that is ready.

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Dustin Godfrey

Reporter at Burnaby Beacon

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