Order DLB-001-2021 pursuant to Section 109 of the Canadian Energy Regulator Act

INSPECTION OFFICER ORDER NO. DLB-001-2021

IN THE MATTER OF THE CANADIAN ENERGY REGULATOR ACT,
AN ORDER UNDER SECTION 109

NAME OF PERSON(S)/COMPANY TO WHOM THIS ORDER IS DIRECTED

, President and CEO-Accountable Officer, Trans Mountain Pipeline ULC is a person appointed by Trans Mountain Pipeline ULC (Trans Mountain) to ensure that all regulatory obligations are met.

On or about 03 /June /2021 at 9:00 the undersigned Canada Energy Regulator Inspection Officer attended a meeting with Trans Mountain Pipeline ULC (Trans Mountain) via Microsoft Teams to discuss the unauthorized clearing activity during bird nesting restricted activity period on Spread 7, Construction Work Package 95.

RELEVANT FACTS

I, , designated as a CER Inspection Officer under subsection 102(1) of the Canadian Energy Regulator Act, believe the following are the relevant facts relating to the issuance of this Order:

1. On 9, April 2021, a complaint from a member of the public was submitted to the CER Pacific Region Office citing their concerns in relation to improper buffer zone demarcation, destruction of a nest and additional environmental concerns on Trans Mountain Expansion Project (TMEP) Spread 7 between Government Road and North Road (49.24455, -122.89987). In response, the CER initiated Compliance Verification Activity (CVA) CVA-2122-125 which is ongoing
2. On 12 April 2021, An Environment and Climate Change Canada (ECCC) Wildlife Officer conducted an unannounced site inspection on TMEP Spread 7 under the authority of the Migratory Birds Convention Act, 1994 (MBCA, 1994). Trans Mountain was issued a verbal stop work order by ECCC for contravening paragraph 6(a) of the Migratory Birds Regulations which contravention resulted in the destruction of a migratory bird nest. The order is specific to the 1,000 meter stretch from the overpass on Highway 1 and North Road and between a slope of Highway 1 and CN Rail track. Subsequently, a Compliance Order was issued in writing by ECCC to Trans Mountain. (Approximate GPS coordinates for the site are 49.244471, -122.900165. According to Trans Mountain, the site is called Construction Work Package 98 or CWP-98.)
3. On 8 May 2021, an American Robin’s nest and eggs were destroyed by a tree faller on Spread 5B (KP 1075) near Agassiz, BC. Nest sweeps had been conducted by Trans Mountain’s contracted Resource Specialists and mitigations including flagging, staking and roping of a 30 m buffer were in place at the time when the nest was destroyed. Trans Mountain indicated the location of the nest was communicated to the contractors conducting clearing activities and no approval was provided to the clearing contractor to conduct clearing activities within the American Robin nest buffer. The hand falling crew crossed over the staking and flagging for the buffer and cleared approximately 10 alder trees (shrubs) within the buffer prior to work being halted by a Trans Mountain Contractor Foreman. Upon identification of the incident, Trans Mountain sent out a memo to all Project construction staff outlining and reinforcing requirements pertaining to review and awareness of nest sweeps prior to initiating daily work. These included reviewing nest sweeps maps and associated mitigation measures prior to daily work, completing a pre-construction environmental walkthrough prior to new work areas starting, and documenting review of nest sweep maps and confirmation of preconstruction environmental walkthroughs on daily safe work agreements.
4. On 25 May 2021, CER staff held an implementation assessment meeting (CVA2021- 125) with Trans Mountain to follow up on mitigation requirements and implementation for clearing within the migratory bird nesting window on TMEP. Trans Mountain confirmed all plans, procedures and mitigation measures were being followed. Trans Mountain advised that on May 18, 2021 an environmental stand down meeting was held to review events, nesting bird mitigation measures, and the importance of the environment.
5. On 2 June 2021, CER Inspection Officer received a phone call from Trans Mountain indicating its contracted clearing crew cleared a section of trees and shrubs without Trans Mountain’s authorization in Construction Work Package 95 (KP 1174.69) on spread 7 in Burnaby, British Columbia on 27 May 2021. Further, Trans Mountain’s applicable policies and procedures were not followed including, but not limited to, the Environmental Protection Plan, the Resource Specific Mitigation Plan, the Environmental Socioeconomic Assessment, and the Environmental Field Guide: Nesting Bird Risk Assessment. Trans Mountain became aware of this activity on 28 May 2021 and a contracted Resource Specialist was mobilized to the site. No damaged or destroyed nests were identified in the cleared vegetation after an inspection was conducted by the Trans Mountain Resource Specialists and other personnel.

PROVISIONS OF ACT THAT ARE ALLEGED TO BE CONTRAVENED - AND ARE CONTINUING - OR ARE LIKELY TO BE CONTRAVENED

GENERAL DUTY – REASONABLE CARE

Pursuant to section 94 of the CER Act, the holder of a certificate or permit must take all reasonable care to ensure the safety and security of persons, the safety and security of regulated facilities and abandoned facilities and the protection of property and the environment.

CERTIFICATE OC-065

Condition 3: Environmental protection: Trans Mountain must implement or cause to be implemented, at a minimum, all of the policies, practices, programs, mitigation measures, recommendations, and procedures for the protection of the environment included or referred to in its Project application or to which it otherwise committed on the record of the OH-001-2014 proceeding.

Based on the facts referenced herein, the Inspection Officer has reasonable grounds to believe that there is or is likely to be a contravention of Parts 2 to 5 or section 335 of the Canadian Energy Regulator Act (CER Act), or for a purpose referred to in subsection 102(2) CER Act, the inspection officer may, by order, direct a person to

1. stop doing something that is in contravention of Parts 2 to 5 or section 335 or cause it to be stopped;
2. take any measure that is necessary in order to comply with Parts 2 to 5 or section 335 or mitigate the effects of non-compliance;
3. stop doing something that may cause a hazard to the safety or security of persons, or damage to property or the environment or cause it to be stopped; or
4. take any measure that is necessary to prevent or mitigate the hazard to the safety or security of persons or damage to property or the environment.

MEASURES TO BE TAKEN

Trans Mountain Pipeline ULC is ORDERED pursuant to subsections 109(1) and 109(2) of the CER Act to:

Specified Measures^{Footnote 1}:

In relation to the Trans Mountain Expansion Project:

1. Conduct an investigation to determine the root cause as to why there have been two incidents (8 May 2021 and 27 May 2021) of contractors commencing work for Trans Mountain without authorization resulting in potential or actual damage to the environment
2. Submit to the CER a copy of the investigation report on or before 10 June 2021, which shall include an action plan for the implementation of the corrective and preventive actions identified in item 1.
3. Provide written evidence of an established and implemented process for verifying that persons working with or on behalf of Trans Mountain are trained and competent and for supervising them to ensure that they perform their duties in a manner that protects the environment in relation to:
   1. clearing activities generally; and
   2. clearing activities conducted during the bird nesting window.

EFFECTIVE DATE OF THE ORDER

This Inspection Officer Order takes effect immediately on 03 /06 /2021 at the time of delivery of the Order to the person/company to whom it is directed. Nothing in this Order shall be construed as reducing, increasing, or otherwise affecting what may be required of the person/company to whom it directed to comply with all applicable legislative or legal requirements.

COMPLIANCE WITH THIS INSPECTION OFFICER ORDER IS MANDATORY

Failure to comply with an Inspection Officer Order issued under section 109 of the CER Act is an offence under section 112 of the CER Act.

Inspection Officer

Inspection Officer		__________________________________ Signature
	IO Designation Number
	03/06/2021	__________________________________ Name (printed)
	Date
	210-517 10 Ave SW, Calgary AB  T2R 0A8

Please note that in compliance with the CER’s Enforcement Policy, this Order will be posted on the CER’s website.

CVA or Incident #: CVA2122-125

Date modified:

2023-05-18