Should Trans Mountain get to bypass a Burnaby fire safety bylaw?

Trans Mountain is seeking permission from the Canada Energy Regulator to bypass more City of Burnaby bylaws, including a fire safety bylaw, for construction at the Burnaby and Westridge Marine terminals.

The constitutional question being raised with the CER follows successful applications by Trans Mountain to bypass the city’s tree bylaw for construction of the pipeline expansion.

“For over seven years, Burnaby has consistently used approval processes under its bylaws to delay the project,” the federal Crown corporation wrote in its notice of motion to the CER.

“To proceed with the project, it has been necessary at each stage for Trans Mountain to seek orders from the [National Energy Board] or [CER] commission exempting Trans Mountain from Burnaby’s bylaw requirements.”

A history of jurisdictional conflict

Trans Mountain listed several instances of bylaws it has circumvented through NEB and CER processes as a result of unreasonable delays.

That includes a 2014 NEB decision setting aside the parks regulation and street and traffic bylaws to allow Trans Mountain to conduct surveys and studies on pipeline routing; a 2018 NEB decision regarding the tree bylaw and zoning bylaw, and 2021 CER decision regarding the tree bylaw, and another 2021 CER decision on the city’s access bylaw for providing off-road access to a Trans Mountain worksite.

But Eugene Kung, a staff lawyer with West Coast Environmental Law who closely monitors the Trans Mountain pipeline expansion, said the decision on this needs to be made carefully, with the bylaws currently in question much more consequential than in previous cases.

Trans Mountain said it needs to bypass four bylaws—the fire services, subtrade permit, building, and zoning bylaws—to work on the terminal expansions.

Kung said the concerning aspect, which sets it apart from previous applications by Trans Mountain, relates to the fire services bylaw.

And it is that regulation that the entire application hinges on.

Fire lane requirements

The fire services bylaw sets out standards for fire access routes, including a requirement that lanes not be less than 7.3m (24ft), with a turning radius—that is, the radius of any turn in the road if it were to be extrapolated to form a circle—of 13m. Those requirements go above the building code requirements of 6m and 12m respectively.

Trans Mountain said it applied for various permits between September 2019 and April 2021, believing its applications “satisfied all technical requirements” under the city’s bylaws.

“Yet Burnaby will not issue the permits applied for. Burnaby has, for months, been seeking a fire truck access plan (FTAP) for the sites prior to issuance of these building-specific permits,” Trans Mountain wrote in its submission.

“Access is a matter that would have been addressed as part of the PPAs [preliminary plan approval] had Burnaby chosen to approve PPAs for the sites—as that access was within the approving authority of the director of planning and building.”

The NEB exempted Trans Mountain from the PPA requirement in its 2017 decision, which the Crown corporation said came about after “Burnaby chose not to promptly process and approve PPAs, forcing Trans Mountain to seek an exemption.”

Now, Trans Mountain says it has provided a fire truck access plan to the city “and repeatedly amended it per Burnaby’s requests.”

“[Trans Mountain] has communicated that some of Burnaby’s requests cannot be implemented at the WMT and Burnaby Terminal due to site constraints, including grading and pipe location,” the pipeline company wrote.

“Burnaby remains steadfast, stating that the FTAPs—which the director of planning and building no longer has the power to approve—are deficient, including regarding road width and turning radii.”

Trans Mountain said its submissions comply with the building code but did not not indicate whether they comply with the bylaw. It further notes that the submissions allow access to the city’s largest fire engine.

“​​Burnaby’s rejection of Trans Mountain’s FTAPs, without assessing the details of the terminal work or discussing the plans with Trans Mountain, is patently unreasonable,” reads Trans Mountain’s submission.

Photo: Dustin Godfrey / Burnaby Beacon files

At an impasse

The city has said it will not issue any permits without approval of the fire prevention office, which Trans Mountain notes is not provided permit approval authority in the bylaw.

“While Trans Mountain has made numerous requests to meet, the FPO [fire prevention office] has become almost completely non-responsive to Trans Mountain’s requests to discuss the FPO’s outstanding concerns and site constraints at the Burnaby Terminal that prevent strict technical adherence to the FPO’s requirements for new structures,” Trans Mountain wrote.

“The FPO declined Trans Mountain’s invitation to a site visit to the Burnaby Terminal to appreciate the site constraints.”

Trans Mountain suggested the city is improperly delegating decision-making to the fire prevention office “rather than making permitting decisions based on the factors enumerated in the building bylaw.”

In its written submissions, Trans Mountain said it should be exempted from the bylaws because the fire safety concerns are “beyond the scope of these permit applications,” adding that the city isn’t responsible for responding to fires at the terminals.

Fire safety concerns

Earlier this year, Trans Mountain was subjected to an emergency response drill, which found the terminal was able to respond to a fire within two-and-a-half hours—well below the four-hour requirement.

However, Burnaby Mountain residents and the city’s fire chief have raised concerns about that response time, noting the fire could very likely be out of control by that time.

Kung added that it’s “not like a fire is going to respect the property line of Trans Mountain when it’s raging out of control.”

In general, Kung said the attempt to override Burnaby’s bylaws—which is enabled by the constitutional convention of federal law trumping provincial (and therefore municipal) rules in overlapping jurisdictions—in this matter is concerning.

“The consequences of that type of thing are more serious,” he said.

And he noted the default is for jurisdictional cooperation rather than federal laws automatically bypassing the rules of other levels of government.

Trans Mountain frustrated by processing times

Trans Mountain said it needs to be able to bypass the city’s bylaws because of the city’s approvals process being much longer for Trans Mountain than for typical applications.

In particular, Trans Mountain relied on the 2017 NEB decision which noted the city’s application review process took two to three times longer than the original estimate of six to eight weeks.

In this particular case, Trans Mountain noted it has been going through the application process for 30 to 56 weeks.

But Kung suggested the city shouldn’t be applying normal timelines to a project in which a major issue could have devastating consequences.

“It’s not like Trans Mountain’s building a condo building. It is unique in the nature of what they’re building, and along with that there are unique elements related, in this case, to health safety, including fire safety,” Kung said.

He said the question is whether it is reasonable for Burnaby to force a project to satisfy the city’s requirements around fire safety “for a tank farm that’s holding millions of barrels of flammable liquid.”

“If the tank farm was holding jello or lemonade, you’d have different concerns,” Kung said.

In the meantime, Trans Mountain said it has “repeatedly” had to adjust its construction schedules at the Burnaby and Westridge Marine terminals for over a year “to accommodate Burnaby’s ongoing refusal to issue permits.”

Trans Mountain is seeking to have the project in service by December next year, which it said would require permits from the city by Jan 17, 2022 at the latest.

Get Burnaby Beacon in your inbox.

An in-depth understanding of the stories that affect Burnaby and beyond, every weekday.