Order DRP-002-2021 (amended) pursuant to Section 109 of the Canadian Energy Regulator Act

INSPECTION OFFICER ORDER NO. DRP-002-2021

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

Trans Mountain Pipeline ULC (Trans Mountain) is a Company conducting work associated with a regulated facility; or ground disturbance on or near a facility located at Laidlaw B.C..

On or about 5 August 2021 at 11:00 a.m. the undersigned Canada Energy Regulator (CER) inspection officer conducted compliance verification activity CV2122-095 of/at MT 1, Mountain Road Highway 1 Re-alignment, Trans Mountain Expansion Project, kilometer post 1060.026 to 1061.246.

Trans Mountain is regulated by the CER under a Certificate of Public Convenience and Necessity OC-065 (OC-065) to construct and operate the Trans Mountain Expansion Project (TMEP). As the holder of OC-065, Trans Mountain is responsible for the oversight and coordination and control of all operational activities for the TMEP.

RELEVANT FACTS

1. On 5 August 2021 CER Inspection Officer (IO) learned through interviews and document review that TMEP construction activities were occurring outside of and not in adherence to project Certificate OC-065 on worksites referred to as Mountain Crossing 1 (MC1) and Mountain Crossing 2 (MC2).
   1. Trenching and backfilling activities had been performed on MC1 and MC2 by two contractors who were not operating under the construction safety manuals filed by Trans Mountain with the CER, specifically:
      1. Health and Safety Management Plan July 2020 CER File: OF-Fac-Oil-T260-2013-03 61 (HSMP), and
      2. Spread 5B, Macro Project Specific Safety Plan (Rev. 3) – Doc. #01-13283-S5B-HS-PLN-0002 (PSSP).
2. Trans Mountain was unable to demonstrate that construction activities authorized by Certificate OC-065 (construction activities) on the MC1 and MC2 work sites have been inspected to ensure that they meet the requirements of the HSMP and PSSP.
   1. When asked by the IO, TMEP Spread 5B field safety inspectors stated they do not conduct oversight of MC1 and MC2 work sites.
   2. When asked by the IO, the TMEP Spread 5B Project Manager (PM) and Health and Safety Lead (HSE) stated they do not receive notification of all incidents or near-miss reports that occur on the MC1 and MC2 work sites.
   3. The TMEP Spread 5B daily work plans for August 4^th and 5^th provided to the IO by Trans Mountain for the purpose of planning the compliance verification activity with the CER did not fully encompass all scopes of work related to MC1 and MC2.
3. Inspection officer order DRP-002-2021 was verbally issued to , Project Manager, Trans Mountain Expansion Project Spread 5B 17:25MST 6 August 2021, and in writing on 7 August 2021.

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

1. General Duty - Reasonable Care - Canadian Energy Regulator Act

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.

2. Certificate of Public Convenience and Necessity OC-065 (OC-065) and conditions attached thereto including conditions 64(a) and 64(b).

3. Canadian Energy Regulator Onshore Pipeline Regulations; sections 18(1)(c), and 6.5(1)(q).

Based on the facts references 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

Inspection officer order DRP-002-2021 is AMENDED pursuant to subsection 69(2) of the CER and replaces the previous order. Trans Mountain Pipeline ULC is ORDERED pursuant to subsections 109(1) and 109(2) of the CER Act to:

Specified Measures^{Footnote 1}:

1. Cease construction activities on MC1 and MC2 work sites that are not being performed in accordance with the HSMP and PSSP until it is demonstrated to the satisfaction of the IO that construction activities will be performed in accordance with all conditions of OC-065 including the HSMP and PSSP.
2. Provide to the IO on or before 27 August 2021 a written description of the actions Trans Mountain has taken or will take to ensure construction activities on MC1 and MC2 work sites are conducted in accordance with the HSMP and PSSP.
3. Provide to the IO on or before 18 August 2021 a response confirming if work on the MC1 and MC2 worksites has been conducted under the following approved plans, filed with the CER under OC-065.
   1. Rare Plant Population Management Plan (condition 40);
   2. Wetland Survey and Mitigation Plan (condition 41);
   3. Watercourse Crossing Inventory (condition 43);
   4. Wildlife Species at Risk Mitigation and Habitat Restoration Plans (condition 44);
   5. Contamination Identification and Assessment Plan (condition 46);
   6. Grizzly Bear Mitigation Plan (condition 56);
   7. Riparian Habitat Management Plan (condition 71);
   8. Pipeline Environmental Protection Plan (condition 72);
   9. Old Growth Management Areas Mitigation and Replacement Plan (condition 76);
   10. Acid Rock Drainage Management Plan (condition 72 and 78);
   11. Plan for Indigenous Group Participation in Construction Monitoring (condition 98);
   12. Heritage Resources and Sacred and Cultural Sites Plan (condition 100);
   13. Condition 100 a) and b), specifically with regards to all permits, clearances and conditions required by Province of British Columbia.
4. Provide to the IO on or before the 27 August 2021 the corrective actions which will be carried out for all instances in which work has not been conducted under the approved plans listed in 3(a-m) of this amended order.
5. Identify and provide to the IO on or before 20 August 2021 a summary of other instances across the TMEP project where work authorized by certificate OC-065 is being performed under any plan or procedure that differs from those filed with the CER under OC-065 including but not limited to the plans listed in 3 (a-m).
   1. If the work has not been conducted under the approved plans, provide to the IO a corrective action plan to mitigate all instances on or before 27 August 2021.

EFFECTIVE DATE OF THE ORDER

This amended inspection officer order takes effect immediately on 12 August 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 is 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
	12/08/2021	__________________________________ 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 #: CV2122-095

Date modified:

2023-07-19