Government Response to the Recommendations
Contained in the Report of the NEB Review Panel
on the Brunswick Pipeline Project (Archived)

Emera Brunswick Pipeline Company (EBPC) filed an application with the National Energy Board (NEB) for a Certificate of Public Convenience and Necessity (Certificate) under section 52 of the National Energy Board Act (NEB Act) to construct and operate the Brunswick Pipeline Project (the project).

The principal purpose of the project is to connect the Canaport Liquefied Natural Gas (LNG) terminal (currently under construction at Mispec Point, New Brunswick) to the U.S. portion of the Maritimes and Northeast Pipeline (MNP) at the international border near St. Stephen, New Brunswick.

The project will consist of approximately 145 km of 30-inch pipeline. The pipeline will serve markets in the U.S. northeast and provide for additional supplies of natural gas in New Brunswick and Nova Scotia through arrangements such as swaps or back-haul transportation service.

The need for a Certificate under section 52 of the NEB Act resulted in the requirement for an environmental assessment (EA) of the project pursuant to paragraph 5(2)(a) of the Canadian Environmental Assessment Act (CEA Act). Other requirements include subsection 35(2) Fisheries Act authorizations from the Minister of Fisheries and Oceans, approvals under the Navigable Waters Protection Act from the Minister of Transport Canada, and a Disposal at Sea permit under the Canadian Environmental Protection Act (1999), from the Minister of the Environment.

The need for any such authorizations, approvals or permits under the Fisheries Act, the Navigable Waters Protection Act, and the Canadian Environmental Protection Act, 1999, also results in the requirement for an environmental assessment pursuant to paragraph 5(1)(d) of the CEA Act.

On May 4, 2006, the Minister of the Environment referred the Brunswick Pipeline Project to a substituted NEB Review Panel. The NEB process was substituted for an EA by a review panel as provided for under section 43 of the CEA Act. This was the first application of the substitution provisions of the CEA Act since the proclamation of the original Act in 1995. The substitution was approved on a pilot basis.

The panel conducted a review of the environmental effects of the project in accordance with the requirements of the CEA Act. The panel also assessed the requirements of the NEB Act. This includes an assessment of the technical, safety and economic aspects of the project.

The panel released its report on April 11, 2007, concluding that the project is not likely to result in significant adverse environmental effects provided the panel's recommendations are implemented and appropriate mitigation measures identified during the course of the review is applied. The panel recommended that the project be allowed to proceed to regulatory and departmental decision-making as long as the recommendations in its report are made part of the requirements of any approval by the NEB.

Pursuant to subsection 37(1.1) of the CEA Act, Responsible Authorities (RAs) shall take into consideration the panel's report and, with the approval of the Governor-in-Council, respond to it. The purpose of this government response is to fulfill this requirement.

All recommendations have been accepted within the context of the Government of Canada mandate. Federal departments are committed to working with the NEB and the Province of New Brunswick in implementing the recommendations based on jurisdictional responsibilities. It is understood that EBPC will develop the necessary plans, and other mitigation measures and follow-up programs identified in the recommendations, in consultation with those expert federal departments with a mandated responsibility and interest.

Following the approval of this response, the panel will decide whether to issue a Certificate under the NEB Act. The issuance of a Certificate under section 52 of the NEB Act will be subject to Governor-in-Council approval.

RECOMMENDATIONS IN THE REVIEW PANEL REPORT

It is recommended that in any Certificate that the NEB may issue, the following recommendations be attached as conditions of approval.

Recommendation A: General

EBPC shall implement or cause to be implemented all of the policies, practices, programs, mitigation measures, recommendations and procedures for the protection of the environment included or referred to in its application or as otherwise agreed to during questioning or in its related submission.

Response A

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation B: Environmental Protection Plan

EBPC shall file with the Board for approval, at least sixty (60) days prior to construction, a project-specific Environmental Protection Plan (EPP). This EPP shall be a comprehensive compilation of all environmental protection procedures, mitigation measures, and monitoring commitments, as set out in EBPC's application for the project, subsequent filings, evidence collected during the hearing process, or as otherwise agreed to during questioning or in its related submissions. The EPP shall describe the criteria for the implementation of all procedures and measures, and shall use clear and unambiguous language that confirms EBPC's intention to implement all of its commitments.

Construction shall not commence until EBPC has received approval of its EPP from the Board.

The EPP shall address, but is not limited to, the following elements:

1. environmental procedures including site-specific plans, criteria for implementation of these procedures, mitigation measures and monitoring applicable to all project phases and activities;
2. site-specific construction plans for wetlands where they cannot be avoided;
3. site-specific plans for habitat harbouring Species at Risk and of Conservation Concern where it cannot be avoided;
4. project-specific acid rock drainage mitigation measures;
5. a construction and reclamation plan for Rockwood Park with evidence demonstrating consultation with stakeholders;
6. a reclamation plan which includes a description of the condition to which EBPC intends to reclaim and maintain the right of way once the construction has been completed, and a description of measurable goals for reclamation; and,
7. evidence of consultation with relevant regulatory authorities that either confirms satisfaction with the proposed mitigation or summarizes any unresolved issues with the proposed mitigation.

Response B

The Government of Canada accepts this recommendation with the understanding that the pre-construction field studies and surveys, which inform preparation of the EPP, will be completed by EBPC to the satisfaction of the appropriate federal departments. In considering the field study and survey results, it is further understood that expert federal departments must confirm the adequacy of proposed mitigation and follow-up details including provisions for compliance with Section 79 of the Species at Risk Act.

Based on evidence filed at the hearings, the Government of Canada further suggests that the EPP also include, but not be limited to, the following elements:

• site-specific plans for old-growth, mature and interior forest habitats for migratory birds where such habitats cannot be avoided; and,
• provisions for protecting populations or individuals or species at risk, species of conservation concern and migratory birds.

Recommendation C: Environmental Follow-Up Programs

EBPC shall file with the Board for approval, at least sixty (60) days prior to construction, a description of planned follow-up programs as required by the Canadian Environmental Assessment Act. The programs shall be designed to verify the accuracy of the environmental assessment predictions and to assess the effectiveness of mitigation for:

• fish and fish habitat as outlined in the Brunswick Pipeline Project Environmental and Socio-Economic Assessment (Volume 1);
• wetlands as outlined in the Brunswick Pipeline Project Environmental and Socio-Economic Assessment (Volume 1);
• access management as detailed in the Access Management Plan (recommendation G);
• horizontal directional drill (HDD) noise management (recommendation I); and,
• reclamation of Rockwood Park (recommendation B(3)).

Copies of all correspondence demonstrating consultation with the appropriate regulatory agencies and stakeholders shall be included in the submission to the Board.

These descriptions of follow-up programs shall include a schedule for the submission of follow-up reports to the Board.

Response C

The Government of Canada accepts this recommendation and further suggests that specific allowance be made to include other valued ecosystem components, such as species at risk, species of conservation concern, and migratory birds, subject to review of completed field studies and surveys and the expert opinion of federal departments.

Based on evidence filed at the hearings, the Government of Canada further suggests that the wetland follow-up program be designed to address effects that may endure beyond EBPC's proposed 5-year monitoring period and that the determination of appropriate compensation for unavoidable losses be established independent of the amount of time required for natural revegetation.

Recommendation D: Traditional Ecological Knowledge Study Recommendations

EBPC shall file with the Board, at least sixty (60) days prior to construction, an update on the implementation of the six recommendations identified in the Traditional Ecological Knowledge Study (July 2006).

Response D

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation E: Construction Inspection Program

EBPC shall file with the Board for approval, at least thirty (30) days prior to construction, a construction inspection program. The program shall include:

1. a preliminary list of the number and type of each inspection position, including job descriptions, qualifications, roles, responsibilities, and decision-making authority;
2. a discussion of how many changes to the items outlined in (1) would be determined during the course of construction; and,
3. the reporting structure of personnel responsible for inspection of the various pipeline construction activities, including environment and safety.

Response E

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation F: Archaeological Studies and Monitoring Plan

EBPC shall consult with the Archaeological Services Unit of New Brunswick on further studies and a monitoring plan for areas with high potential for heritage resources, once the locations for the detailed right of way, facility sites and temporary work space have been determined. EBPC shall file with the Board, at least thirty (30) days prior to construction:

1. for approval, a report that documents how archaeological and heritage resources within the detailed route have been identified, recorded and mitigated;
2. copies of any correspondence from, or a summary of any discussions with the Archaeological Services Unit of New Brunswick regarding the acceptability of EBPC's report and proposed mitigation measures; and,
3. for approval, a copy of any proposed monitoring plan.

Response F

The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees. This recommendation is under the jurisdiction of the province of New Brunswick.

Recommendation G: Access Management Plan

EBPC shall file with the Board for approval, at least thirty (30) days prior to construction, a project-specific Access Management Plan that includes:

1. EBPC's goals and measurable objectives regarding the Access Management Plan;
2. the methods and procedures to be used to achieve the mitigation goals;
3. the criteria to determine if the mitigation goals have been met;
4. the frequency of monitoring activities along the right of way;
5. a description of the adaptive measures that will take place in the event that access management measures are ineffective; and,
6. evidence of consultation with relevant regulatory authorities and landowners that either confirms satisfaction or summarizes any unresolved issues with the proposed mitigation.

Construction shall not commence until EBPC has received approval of its Access Management Plan from the Board.

Response G

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

The proponent shall prepare an Access Management Plan in consultation with the appropriate expert federal authorities in a matter consistent with their mandated responsibilities and interests.

Recommendation H: HDD (Horizontal Directional Drilling) Noise Management Plan

EBPC shall file for approval, at least ninety (90) days prior to the start of the HDD activity proposed for the Saint John River Crossing, a detailed noise management plan containing information on day-time and night-time HDD operations at the drill exit and entrance sites, including but not limited to the following:

1. ambient sound levels at noise-sensitive areas close to the HDD exit and entrance sites to establish a baseline for assessing potential noise impacts;
2. predicted noise level at the most affected residences caused by HDD without mitigation;
3. proposed HDD noise mitigation measures, including but not limited to the following:
   1. all technologically and economically feasible mitigative measures as presented in Section 5.1.7 of the Environmental and Socio-Economic Assessment (Jacques Whitford, 2006) and in the Resource Systems Engineering assessment;
   2. the use of full enclosures on diesel powered units;
   3. the use of quiet machinery (where feasible);
   4. the undertaking of HDD activities during periods where residential windows would be expected to be closed (i.e., during winter months);
4. predicted noise level at the most affected residences with implementation of the mitigation measures;
5. noise contour map(s) showing the potentially affected residences at various noise levels;
6. a noise monitoring program, including locations, methodology and schedule;
7. confirmation that residents potentially affected by HDD noise will receive contact information for EBPC in the event they have concerns about the HDD noise;
8. a contingency plan with proposed mitigative measures for addressing noise complaints, which may include the temporary relocation of specific residents; and,
9. confirmation that EBPC will provide notice to nearby residents in the event that a planned blowdown is required and that planned blowdowns will be completed during day-time hours whenever possible.

Response H

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation I: Saint John River Crossing

EBPC shall construct the crossing(s) of the Saint John River using the HDD method or, if this is not feasible, shall apply to the Board for approval of an alternative crossing technique and include an environmental assessment of the proposed alternative with its application.

Response I

The Government of Canada accepts this recommendation. The proponent is further advised that any project change or modification that may require a disposal at sea permit pursuant to the Canadian Environmental Protection Act, 1999, will require an environmental assessment under the Canadian Environmental Assessment Act.

Recommendation J: Archaeological or Heritage Resource Discovery

EBPC shall notify the Board, at the time of discovery, of any archaeological or heritage resources and, as soon as reasonable thereafter, file with the Board for approval a report on the occurrence and proposed treatment of the archaeological/heritage resources, any changes to the archaeological/heritage monitoring plan, and the results of any consultation, including a discussion on any unresolved issues.

Response J

The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees. This recommendation is under the jurisdiction of the province of New Brunswick.

Recommendation K: Emergency Procedures Manual

EBPC shall file with the Board, at least sixty (60) days prior to operation, an Emergency Procedures Manual (EPM) for the Project and shall notify the Board of any modifications to the plan as they occur. In preparing its EPM, EBPC shall refer to the Board letter dated 24 April 2002 entitled "Security and Emergency Preparedness Programs" addressed to all oil and gas companies under the jurisdiction of the National Energy Board.

Response K

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

The proponent shall prepare an Emergency Procedures Manual in consultation with the appropriate expert federal departments in a manner consistent with their mandated responsibilities and interests.

Recommendation L: Consultation on Emergency Procedures Manual

EBPC shall file with the Board, at least sixty (60) days prior to operation, evidence of consultation with stakeholders identified in the EPM, including a summary of any unresolved issues identified in consultations, and evidence that the EPM addresses, to the extent possible, any issues raised during consultation.

Response L

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

The proponent shall prepare an Emergency Procedures Manual in consultation with the appropriate expert federal authorities in a matter consistent with their mandated responsibilities and interests.

Recommendation M: Emergency Response Exercise

1. Within six (6) months after commencement of operation of the Project, EBPC shall conduct an emergency response exercise with the objectives of testing:
   • emergency response procedures;
   • training of company personnel;
   • communications systems;
   • response equipment;
   • safety procedures; and,
   • effectiveness of its liaison and continuing education programs.
2. EBPC shall notify the Board, at least thirty (30) days prior to the date of the emergency response exercise, of the following:
   • the date and location(s) of the exercise;
   • the participants in the exercise; and,
   • the scenario for the exercise.
3. EBPC shall file with the Board, within sixty (60) days after the emergency response exercise outlined in (1), a report on the exercise including:
   • the results of the exercise;
   • areas for improvement; and,
   • steps to be taken to correct deficiencies.

Response M

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation N: Emergency Response Exercise Program

Within six (6) months after commencement of operation of the Project, EBPC shall file with the Board a description of the company's emergency response exercise program, including:

• the frequency and type of exercises (full-scale, table-top, drill) it plans to conduct; and,
• how the results of any emergency response exercises will be integrated into the company's training and exercise programs.

Response N

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation O: Post-construction Environmental Reports

Within six (6) months following commencement of operation of the Project, and on or before the 31st of January following each of the second (2nd) and fourth (4th) complete growing seasons following commencement of the operation of the Project, EBPC shall file with the Board a post-construction environmental report that:

1. identifies on a map or diagram any environmental issues that arose during construction;
2. provides a discussion of the effectiveness of the mitigation applied during construction;
3. identifies the current status of the issues identified, and whether those issues are resolved or unresolved; and,
4. provides proposed measures and the schedule EBPC shall implement to address any unresolved issues.

Response O

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.

Recommendation P: Environmental Follow-Up Program Reports

EBPC shall file with the Board, based on the schedule referred to in Recommendation C, the report(s) outlining the results of the follow-up programs.

Response P

The Government of Canada accepts this recommendation. The NEB has recommended that this become a condition of approval for any certificate it may issue. The Government of Canada agrees.