Administrative Monetary Penalty – Trans-Northern Pipelines Inc. – AMP-001-2021

Administrative Monetary Penalty – Trans-Northern Pipelines Inc. – AMP-001-2021 [PDF 553 KB]

NOTICE OF VIOLATION

REFERENCE NUMBER: AMP-001-2021

Information for Pipeline Company/Third Party/Individuals

Information for Pipeline Company/Third Party/Individuals

Name:	Trans-Northern Pipelines Inc.
Contact:	Jane Keast
Title:	President and Chief Executive Officer
Address:	310 – 45 Vogell Road
City:	Richmond Hill
Province / State:	Ontario, L4B 3P6
Telephone:
E-mail:

TOTAL PENALTY AMOUNT:

$40,000

Date of Notice:

March 12, 2021

Regulatory Instrument #:

OC-3, AO-1-OC-3, AO-2-OC-3

 

On March 22, 2019 (date violation was detected)

Trans-Northern Pipelines Inc.

Was observed to be in violation of a CER regulatory requirement. This violation is subject to an administrative monetary penalty, as outlined below.

Section One – Violation Details

Section Two – Relevant Facts

Briefly describe reasonable grounds to believe a violation has occurred

Executive Summary:
TNPI is the certificate holder of the following Canada Energy Regulator (CER) authorization; Certificate OC-3, as amended, to operate approximately 800 kilometres of pipeline which transports refined products between Montreal and Toronto. The original line was built in 1952. 

To explain references to the National Energy Board (NEB) and CER and their staff throughout this document, note that the CER replaced the NEB, its predecessor organization, on 28 August 2019 as the CER Act came into force. On 28 August 2019, the National Energy Board Act was repealed and replaced by the CER Act, and the NEB’s mandate was transferred to the CER.

Multiple compliance verification activities and prior enforcement actions (Notices of Non-Compliance and Inspection Officer Orders) over the last several years indicate that TNPI did not have an adequate environmental protection program (EPP). This Notice of Violation (NOV) relates to one such non-compliance detailed below. Other EPP-related non-compliances are detailed in the Appendices, but they do not form a part of the evidentiary basis for this NOV.

Section 48 of the OPR states that: “A company shall develop, implement and maintain an environmental protection program that anticipates, prevents, manages and mitigates conditions that could adversely affect the environment.”

There have been multiple observations (see Appendices for a selection of examples) of TNPI being out of compliance with section 48 of the OPR related to the EPP, particularly with respect to the management of contaminated sites. The potential hazards associated with confirmed contaminated sites and possible contaminated sites have not been adequately identified, assessed or properly controlled by TNPI in order to anticipate, prevent, manage and mitigate conditions that could adversely affect the environment.  To manage and mitigate includes the assessment of contamination (where, how deep, what contaminants), clean-up of the contaminants, and a risk control strategy to ensure people as well as the environment are protected from residual contamination (risk management).  

While these observations represent multiple non-compliances of the EPP-related requirements in the OPR, as the AMP Officer designated by the CER’s CEO to issue notices of violation, I have discretion about if and when to issue them. I am mindful, in exercising this discretion, of the purpose of the CER Act’s administrative monetary penalty scheme, which is to promote compliance, and not to punish. As a result, I am only issuing this specific notice of violation at this time.

Based on the information I have reviewed, in relation to the contaminated site identified as Long Sault, I believe that TNPI was, on 22 March 2019, in violation of section 48 of the OPR.

The facts relevant to this violation are as follows:

In summary, during an NEB inspection in March 2019, TNPI could not demonstrate whether it had prevented the potential exposure of contamination to the adjacent resident’s home (air) and yard (soil) at the contaminated site designated Long Sault. The contamination has migrated off of TNPI’s right of way, into the back yard of the residence and to within approximately 5 to 10 metres of the home. Identifying, anticipating and assessing this potential hazard to the residents should have been done as part of TNPI’s EPP as required by OPR section 48, to properly ensure safety of the residents and protection of the environment. This contamination was only thoroughly addressed once the IO Order LJP-001-2019 was issued with clear direction to TNPI on what to do.

On 22 March 2019, a field inspection was conducted at TNPI milepost 83.6 in the vicinity of Long Sault, ON, by an IO. Based on the field inspection and environmental site assessment information available through the site’s Remediation Process file, and from compliance history and discussions with TNPI, the IOs determined that there were uncertainties associated with the assessment at the site (to understand the potential risk to human health and the environment) conducted by TNPI. CER IOs concluded that additional confirmatory sampling was warranted to determine whether:

1. Contamination had migrated into the soil-air space beside the house and potentially entered the resident’s basement. In other words, uncertainty regarding potential risks to human health resulting from unsafe indoor air quality;
2. Contamination was in the surface soil where the residents could have potentially been exposed through ingestion of soil, dermal contact or particulate inhalation. In other words, uncertainty regarding potential risks to human health via direct soil contact;
3. Contamination had migrated in groundwater down the pipeline corridor, under the roadway and to the west. In other words, uncertainties regarding groundwater delineation and potential risks to other downgradient receptors.

On 22 March 2019, TNPI was issued the IO Order to address the NEB’s immediate concerns for the safety of the residents living at the adjacent property which TNPI had failed to adequately assess. The IO Order was issued due to a lack of adequate assessment of soil, soil vapour, and groundwater to ensure the safety of the residents and the potential downgradient receptors. 

In the IO Order, the IO directed TNPI to do additional confirmatory sampling, provided specific direction about requirements the sampling had to meet, and  instructed TNPI that the data had to be obtained at a level of detail and quality such that it could be used in a quantitative human health and ecological risk assessment per guidance provided in Canadian Council of Ministers of the Environment Guidance Manual for Environmental Site Characterization in Support of Environmental and Human Health Risk Assessment (2016).

In addition to the IO Order, on 26 March 2019, the Board issued a Direction Letter to TNPI outlining the deficiencies in the Long Sault Remedial Action Plan (RAP) and Supplemental Filings for Long Sault.  In the letter, the NEB noted TNPI’s pattern of late or delayed responses or actions, their information gaps in the Environmental Site Assessments and RAPs and their insufficient evidence of landowner engagement.  The NEB directed the company to address the specific information gaps set out in the letter in order to ensure residents were protected and to enable the NEB to determine whether TNPI’s RAP and other filings were adequate. TNPI was directed to address information gaps by 31 May 2019 and file an updated RAP that met the requirements as laid out in the NEB’s Remediation Process Guide by 31 July 2019. TNPI submitted a third version of the RAP, which did not meet the requirements of the Board Direction Letter and was again rejected by the CER (21 February 2020).  The fourth version of the RAP was submitted to the CER in June 2020, and is still under active review and information gathering by the CER.

Conclusion:

Given the deficiencies in the Long Sault contamination management identified on 22 March 2019, TNPI could not establish that its EPP was developed, implemented and maintained, or that it was successfully managing and mitigating conditions that could adversely affect the environment (adjacent resident’s indoor air and soil quality). Based on this, I believe that TNPI was in violation of section 48 of the OPR and hereby issue this Notice of Violation.

Section Three – Penalty Calculation

A) Baseline Penalty (Gravity Level = 0)

Refer to AMP Regulations, Subsection 4(1)

B) Applicable Gravity Value

Refer to AMP Regulations, Subsection 4(2))

Section Four – Total Penalty Amount

Section Five – Due Date

(30 days from receipt of Notice of Violation)

_____________________________________________________________
Keith Landra ()

Designated Officer pursuant to ss. 116(2) of the CER Act
Administrative Monetary Penalties

Notes

You have the right to make a request for a review of the amount of the penalty or the facts of the violation, or both, within 30 days after the Notice of Violation was received.

If you do not pay the penalty nor request a review within the prescribed period you are considered to have committed the violation and you are liable for the penalty set out in the Notice of Violation. The penalty is due on the date indicated above.

The unpaid penalty amount is a debt due to the Crown and may be recovered by collection procedures stipulated in the Financial Administration Act.

The information regarding the violation may be posted on the CER website:

• a) 30 days from the date this Notice of Violation was received; or
• b) upon issuing a decision following a Request for Review.

To Make Payment:

You may remit your fee payment by Electronic Funds Transfer (EFT) or by cheque payable to the order of Receiver General for Canada.

EFT payments can be arranged by contacting the Director of Financial Services, Monday to Friday, from 09:00 to 16:00 Mountain Time:

• Telephone: 403-919-4743 / 800 899-1265
  Fax: 403-292-5503 / 877-288-8803

Cheques should be made out to the *Receiver General for Canada" and mailed to:

• Canada Energy Regulator
  Attention: Finance
  Suite 210, 517 – 10th Avenue SW
  Calgary, Alberta T2R OA8

Your completed Payment form should be enclosed with your payment.

Date modified:

2022-08-05