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Why NEB's Gateway Report Is Vulnerable to Legal Assault

Enbridge, federal government complicit in flawed Joint Review Panel finding.

By Robyn Allan 20 Jan 2014 |

Robyn Allan is an independent economist. She was an expert witness on insurance and risk at the Northern Gateway Hearings. Her reports are available at Read Robyn Allan's other articles for The Tyee here.

The federal Joint Review Panel report recommending Ottawa approve Northern Gateway has a number of flaws, errors and misrepresentations. The issues are serious enough that several environmental groups and two First Nations have asked the federal court for a judicial review. Ecojustice lawyers representing Forest Ethics Advocacy, Living Oceans Society and Raincoast Conservation Foundation seek a court order to prevent the cabinet from relying on the report.

The most disturbing aspect of the report is the false risk message it sends. Much of the bias is the panel's own doing, but some is because Enbridge can't be trusted to tell the truth. It looks as if the Canadian government isn't all that forthcoming either and not simply because Environment Canada quietly released a report in early January -- finalized last November -- contradicting Enbridge's claims that diluted bitumen will float in a marine setting.

An October 2012 Fisheries and Oceans Canada research study on the fresh water fate and behaviour of diluted bitumen in Enbridge's Marshall, Michigan spill was also withheld from the panel. It should have been tabled as evidence for consideration.

In August 2012 Fisheries and Oceans Canada's Centre for Offshore Oil, Gas and Energy Research offered its in-kind services to the U.S. Environmental Protection Agency (EPA). The EPA is in charge of emergency response for Enbridge's Line 6B July 2010 failure, which leaked more than 20,000 barrels of Cold Lake Blend and Western Canadian Select into the environment. Much of the crude oil made its way to Talmadge Creek and into the Kalamazoo River. Canadian scientists received sediment samples from the EPA and analyzed the effectiveness of a submerged oil identification technique known as UV fluorescence.

Fisheries and Oceans Canada findings were released Oct. 24, 2012. The research concluded, "in the initial stages of the cleanup operations, UV-fluorescence was able to highlight the presence of bulk oil.... However, as cleanup operations proceeded ... oil within the sediments was reduced to low concentrations ... this, coupled with quenching of dispersed oil droplets, resulted in our subsequent inability to detect traces of the residual oil by ... UV illumination."

On Nov. 1, 2012 Enbridge told the panel that UV illumination was very effective for identifying submerged oil. There was no mention its effectiveness had undergone scientific review, or that this research found it to be no longer useful for detecting submerged oil in Kalamazoo's ecosystem.

Fisheries and Oceans Canada was a government participant at the Gateway hearings. It could have filed its report as evidence. Neither the federal government nor Enbridge thought it useful to inform the panel of the scientific findings.

Does diluted bitumen sink? Ask Kalamazoo

For more than three years Kalamazoo River emergency responders have attempted to identify, contain and retrieve submerged diluted bitumen. None of the parties involved anticipated the oil would sink below the water's surface. During the first year of oil recovery, responders spent two to three times longer dealing with submerged oil than surface oil.

Enbridge claims 20,082 barrels spilled from its pipeline. The EPA has not yet published an estimate of the amount of oil that made its way into fresh water, or the volume that submerged or sank. The agency calculated in August 2012 that 4,286 barrels remain. This means that after two years of aggressive recovery the EPA estimated 21 percent of the spilled oil still remained submerged in the Kalamazoo River.

Enbridge told the NEB panel a different story and the panel bought it. "Northern Gateway said that the majority of the spilled oil floated, and that 15 to 20 per cent of the oil submerged." For Enbridge's claim to be correct, it would mean that after three years, no submerged oil had been recovered. Enbridge also claimed there was only a "small amount that is remaining." The panel bought that too.

Enbridge submitted low-ball estimates of remaining submerged oil to the EPA. Enbridge did not apply the methodology the EPA requested it use in a November 2012 directive based in part on Canadian research. The EPA found Enbridge "significantly underestimates the volume of submerged Line 6B oil which remains in the Kalamazoo River. The report estimates the volume in the River as between 1,528 gallons to 8,012 gallons (36 barrels to 191 barrels). However, EPA's application of the methodology required by the directive results in an estimate of residual submerged Line 6B oil as much as 100 times higher than the Enbridge estimated volume."

The EPA ordered Enbridge in March 2013 to undertake dredging. The goal was recovery of 285 to 430 barrels of the remaining 4,286 barrels by Dec. 31, 2013. Enbridge missed the deadline.

Enbridge requested the EPA grant a ten-month extension. The request was denied. Enbridge is not in compliance with EPA emergency response directives. The agency's denial letter is a scathing indictment of Enbridge's planning and response capabilities. "In particular, U.S. EPA believes that Enbridge has continuously failed to prepare adequate contingency plans for a project of this nature."

This finding is far from the NEB panel's glowing report of Enbridge's corporate transformation since the Kalamazoo spill. It said "Northern Gateway has taken a precautionary approach by showing a commitment to improve performance, and, in some cases, to go beyond applicable regulations, codes, and technologies…The panel recognizes Northern Gateway's commitment to change its corporate culture…"

More misrepresentations

Enbridge also misinformed the panel about the ability of the Kalamazoo River to recover from the impact of Line 6B oil. In March 2013, well before Enbridge presented final arguments to the panel in May, Enbridge knew an in-depth EPA study concluded "it does not appear Line 6B oil degrades significantly even in induced optimum conditions." This report was not tabled for the panel's consideration either.

The NEB panel said it "accepted the scientific evidence that indicates that the environment would ultimately recover (from a large spill) and return to a functioning ecosystem similar to that existing prior to the spill."

Line 6B oil is intended for shipment along Northern Gateway. It does not biodegrade and it cannot be completely recovered through dredging. How can the ecosystem it affects return to a pre-spill condition?

It's easy to reach a particular finding when relevant scientific evidence to the contrary is withheld and a panel accepts a proponent's self-serving claims. The Canadian public deserves better.  [Tyee]

Read more: Energy, Environment

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