NEB decision on Kinder Morgan hearings and intervenors list

File OF-Fac-Oil-T260-2013-03 02 2 April 2014 Mr. D. Scott Stoness Vice President, Finance & Regulatory Affairs Kinder Morgan Canada Inc. Suite 2700, 300 5th Avenue SW Calgary, AB T2P 5J2 Facsimile 403-514-6622 Email [email protected]

Mr. Shawn H. T. Denstedt, Q.C. Osler, Hoskin & Harcourt LLP Suite 2500, 450 1st Street SW Calgary, AB T2P 5H1 Facsimile 403-260-7024 Email [email protected]

Dear Mr. Stoness and Mr. Denstedt:

Trans Mountain Pipeline ULC (Trans Mountain) Application for the Trans Mountain Expansion Project dated 16 December 2013 (Application) Completeness Determination and Legislated Time Limit

On 16 December 2013, Trans Mountain applied to the National Energy Board (Board) for the Trans Mountain Expansion Project (Project). In a letter dated 31 December 2013, the Board indicated that it would determine if the application is complete. Comments received Letters containing comments regarding completeness were filed by the Pacheedaht First Nation (Pacheedaht) on 19 February 2014 and from the City of Burnaby (Burnaby) on 17 March 2014. Pacheedaht expressed concerns that, in its view, the Application did not meet various Board filing requirements. It requested that the Board require Trans Mountain to address what were, in Pacheedahts view, specific deficiencies prior to a Notice of Hearing being issued. These deficiencies were outlined in Pacheedahts letter. Burnaby said that the Application does not meet the requirements of the Boards Filing Manual or the Boards 10 September 2013 letter to Trans Mountain regarding filing requirements related to the effects of increased marine shipping activities. In Burnabys view, the Application does not provide sufficient information to enable potential participants to determine Project impacts or to respond with their own evidence. Burnaby said that, while further information would be forthcoming throughout the process, the Application must meet the minimum legal standards. Burnaby also listed what were, in its view, specific deficiencies in the Application. Burnaby also said that many of its affected citizens have not been made aware of the Project and have not been provided with information in relation to the Project. Burnaby submitted that the Board should find the Application incomplete.

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Reply from Trans Mountain Trans Mountain filed a letter on 27 March 2014 in reply to Burnaby. Based on the Boards determination below, the Board does not find it necessary to address Trans Mountains submissions. Views of the Board The Board has stated that the completeness determination was an initial threshold question where the Board determines if an application is complete to proceed to assessment. The Board does not typically seek comments on completeness and makes its completeness determination before deciding which participants it will hear from on a given application. For this Application, the Board has stated that, if it determines the Application is complete, it will hold a public hearing and make decisions about participation. The hearing process is designed to allow the Board to hear and consider all participants views and evidence before the Board makes its recommendation about the Application to the Governor in Council. The Board has, in its concurrently issued Ruling on Participation, granted intervenor status to Pacheedaht and Burnaby. As intervenors, they will be able to test Trans Mountains evidence by asking questions, filing their own evidence, and making final argument. The Boards completeness determination, as an initial threshold question, does not preclude participants from expressing their views on and/or asking questions about what they consider to be deficiencies in the Application through the hearing process. The test for completeness is not whether a single topic contained in the Boards filing requirements may or may not have been inadequately addressed in the Application. In many instances, including for this Application, additional information from Trans Mountain may be obtained by further questioning from the Board or intervenors, including Pacheedaht and Burnaby. The Board takes a holistic approach to completeness and considers whether there are important issues missing from the application that would make participants unable to engage in debate at a public hearing. In this instance, the Board is of the view that participants will be able to engage in debate on this Application through the hearing process. For the above reasons, and following its review of the Application, on 2 April 2014, the Board has determined that the Application is complete to proceed to assessment and a public hearing. Pursuant to subsections 52(4), 58(4), and 58(5) of the National Energy Board Act (NEB Act), the Chair has specified that the time limit for the Board to issue its report for the Governor in Council is 15 months. This report may also contain the Boards decision on approvals requested by Trans Mountain under section 58 of the NEB Act as part of the Application. The Board will issue its report no later than 2 July 2015, subject to any modifications allowed under the NEB Act. The Board has issued Hearing Order OH-001-2014 detailing the steps and deadlines that will be followed during the Application assessment and public hearing process. As to Burnabys concerns regarding notice and consultation, the Board noted in Ruling No. 3 that it received over 2,000 Applications to Participate. At that time, the Board stated that it had not precluded persons from filing a late Application to Participate should there be individual circumstances, such as a lack of notice, that they wish to bring to the Boards attention, and this remains the case. The Board remains of the view that notice of the Application and hearing process has been sufficiently provided to impacted persons.

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If there are any questions regarding participation in this hearing, please refer to the details in the Hearing Order or, if required, contact the Boards Process Advisor Team for this Project by phone at 403-292-4800 or 1-800-899-1265 (toll-free), or by email at [email protected]. Yours truly, Sheri Young Secretary of the Board c.c. Those who filed Applications to Participate

File OF-Fac-Oil-T260-2013-03 02 2 April 2014 Mr. D. Scott Stoness Vice President, Finance & Regulatory Affairs Kinder Morgan Canada Inc. Suite 2700, 300 5th Avenue SW Calgary, AB T2P 5J2 Facsimile 403-514-6622 Email [email protected]

Mr. Shawn H. T. Denstedt, Q.C. Osler, Hoskin & Harcourt LLP Suite 2500, 450 1st Street SW Calgary, AB T2P 5H1 Facsimile 403-260-7024 Email [email protected]

Dear Mr. Stoness and Mr. Denstedt:

Trans Mountain Pipeline ULC (Trans Mountain) Application for the Trans Mountain Expansion Project dated 16 December 2013 (Application) Hearing Order OH-001-2014

On 16 December 2013, Trans Mountain applied to the National Energy Board (Board) for a certificate of public convenience and necessity and related approvals for its proposed Trans Mountain Expansion Project, pursuant to the National Energy Board Act. As detailed in a separate letter dated 2 April 2014, the Board has determined that the Application is complete to proceed to assessment. As a result, a public hearing will be held. The Board is issuing the attached Hearing Order OH-001-2014 detailing the steps and deadlines that will be followed during the Application assessment and public hearing process. The process has been designed to be fair, transparent, and efficient, and to provide certainty to all those involved. The Board will also conduct an environmental assessment under the Canadian Environmental Assessment Act, 2012, which will be included in the Boards report to the Minister of Natural Resources. For more information, see the Boards 2 April 2014 Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012.

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The Board determined who will be allowed to participate in the hearing after holding an application process between 15 January and 12 February 2014. See the Boards 2 April 2014 Ruling on Participation for information on how the Board determined the participants in this hearing, and their methods of participation. Trans Mountain is directed to offer an electronic version of its Application to libraries and municipalities along the project route. It must also post on its website a list of those locations that have agreed to house the Application. Once this list is posted, the public should contact individual locations for viewing information. If there are any questions regarding this Hearing Order, please contact the Boards Process Advisor Team for this project by phone at 403-292-4800 or 1-800-899-1265 (toll-free), or by email at [email protected]. Yours truly, Sheri Young Secretary of the Board c.c. List of Participants

Distribution list (attached) Attachments

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Distribution List for Hearing Order OH-001-2014

(Attorneys General - Canada / Procureurs gnraux) The Honourable Greg Rickford Minister of Natural Resources Ministers Office 580 Booth Street, 21st Floor, Room: C7-1 Ottawa, Ontario K1A 0E4 Telephone/tlphone: 613-996-2007 Facsimile/tlcopieur: 613-943-0662 Email/courriel: [email protected] The Honourable Peter Mackay Minister of Justice & Attorney General of Canada Room 509S, Centre Block Ottawa, Ontario K1A 0A6 Telephone/tlphone: 613-992-4621 Facsimile/tlcopieur: 613-990-7255 Email/courriel: [email protected] The Honourable Suzanne Anton Minister of Justice and Attorney General Province of British Columbia P.O. Box 9044 Stn Prov Govt Victoria, BC V8W 9E2 Telephone/tlphone: 250-387-1866 Facsimile/tlcopieur: 250-387-6411 Email/courriel: [email protected] The Honourable Jonathan Denis, Q.C. Minister of Justice & Attorney General Province of Alberta 403 Legislature Building 10800 97 Avenue Edmonton, AB T5K 2B6 Telephone/tlphone: 780-427-2339 Facsimile/tlcopieur: 780-422-6621 Email/courriel: [email protected]

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The Honourable Gordon Wyant Minister of Justice & Attorney General Province of Saskatchewan Room 355 Legislative Building 2405 Legislative Drive Regina, SK S4S 0B3 Telephone/tlphone: 306-787-5353 Facsimile/tlcopieur: 306-787-1232 Email/courriel: [email protected] The Honourable Andrew Swan Minister of Justice and Attorney General Government House Leader Province of Manitoba Room 104, 450 Broadway Avenue Legislative Building Winnipeg, MB R3C 0V8 Telephone/tlphone: 204-945-3728 Facsimile/tlcopieur: 204-945-2517 Email/courriel: [email protected] The Honourable John Gerretsen Attorney General of the Province of Ontario McMurtry-Scott Building 720 Bay Street, 11th Floor Toronto, ON M7A 2S9 Telephone/tlphone: 416-326-2220 / 1-800-518-7901 Facsimile/tlcopieur: 416-326-4007 Email/courriel: [email protected] LHonorable Bertrand St-Arnaud Ministre de la Justice du Qubec difice Louis-Philippe-Pigeon 1200, route de lglise, 9e tage Qubec, QC G1V 4M1 Telephone/tlphone: 418-643-4210 Facsimile/tlcopieur: 418-646-0027 Email/courriel: [email protected] / [email protected]

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Mr. Guy Daigle Assistant Deputy Attorney General Province of New Brunswick Legislative Building, Centre Block P.O. Box 6000 Fredericton, NB E3B 5H1 Telephone/tlphone: 506-453-2222 Facsimile/tlcopieur: 506-453-3275 Email/courriel: [email protected]

The Honourable Lena Metlege Diab Attorney General and Minister of Justice Province of Nova Scotia 4th Floor, 5151 Terminal Road, P.O. Box 7 Halifax, NS B3J 2L6 Telephone/tlphone: 902-424-4044 Facsimile/tlcopieur: 902-424-0510 Email/courriel: [email protected] The Honourable Janice Sherry Attorney General Province of Prince Edward Island 4th Floor Shaw Building, South, 95 Rochford Street, P.O. Box 2000 Charlottetown, PEI C1A 7N8 Telephone/tlphone: 902-368-6410 Facsimile/tlcopieur: 902-368-6488 Email/courriel : [email protected] The Honourable Darin King Minister of Justice & Attorney General Province of Newfoundland and Labrador P.O. Box 8700, 4th Floor, East Block Confederation Building St. John's, NL A1B 4J6 Telephone/tlphone: 709-729-2869 Facsimile/tlcopieur: 709-729-0469 Email/courriel : [email protected]

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The Honourable Mike Nixon Minister of Justice Government of the Yukon Yukon Legislative Assembly P.O. Box 2703 Whitehorse, YT Y1A 2C6 Telephone/tlphone: 867-667-7973 Facsimile/tlcopieur: 867 393-6252 Email/courriel: [email protected] The Honourable Paul Okalik Minister of Justice Government of the Nunavut Territory P.O. Box 1000, Stn 500 Iqaluit, NU X0A 0H0 Telephone/tlphone: 867-975-5071 Facsimile/tlcopieur: 867-975-5073 Email/courriel : [email protected] The Honourable Leona Aglukkaq Minister of the Environment Les Terrasses de la Chaudire 10 Wellington Street, 28th Floor Gatineau, QC K1A 0H3 Telephone/tlphone: 819-997-1441 Facsimile/tlcopieur: 819-953-0279 Email/courriel: [email protected] The Honourable David Ramsay Minister of Justice P.O. Box 1320 Yellowknife, NT X1A 2L9 Telephone/tlphone: 867-669-2377 Facsimile/tlcopieur: 867-873-0388 Email/courriel: [email protected]

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(Provincial Government Departments / Ministres provinciaux) The Honourable George Kuksuk Minister of Energy Government of the Nunavut Territory P.O. Box 2410 Iqaluit, NU X0A 0H0 Telephone/tlphone: 867-975-5070 Facsimile/tlcopieur: 867-975-5073 Email/courriel : [email protected] The Honourable Eva Aariak Premier Minister of Executive & Intergovernmental Affairs Minister Responsible for the Status of Women Minister Responsible for Immigration Government of the Nunavut Territory P.O. Box 2410 Iqaluit, NU X0A 0H0 Telephone/tlphone: 867-975-5050 Facsimile/tlcopieur: 867-975-5051 Email/courriel: [email protected] The Honourable Andrew Younger Minister of Energy Nova Scotia Department of Energy Bank of Montreal Building, Suite 400 P.O. Box 2664 5151 George Street Halifax, NS B3J 3P7 Telephone/tlphone: 902-424-7793 Facsimile/tlcopieur: 902-424-3265 Email/courriel: [email protected] The Honourable Bill Bennett Minister of Energy and Mines/ Minister Responsible for Core Review Province of British Columbia P.O. Box 9060 Stn Prov Govt Victoria, BC V8W 9E2 Telephone/tlphone: 250-387-5896 Facsimile/tlcopieur: 250-356-2965 Email/courriel: [email protected]

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Mr. Jack Shaw Director, Regulatory Affairs Alberta Department of Energy 300, 801 - 6 Avenue S.W. Calgary, AB T2P 3W2 Telephone/tlphone: 403-297-5406 Facsimile/tlcopieur: 403-297-5499 Email/courriel: [email protected] Mr. Douglas Larder, Q.C. Executive Director & General Counsel-Law Alberta Utilities Commission Fifth Avenue Place 4th Floor, 425 1st Street S.W. Calgary, AB T2P 3L8 Telephone/tlphone: 403-592-4520 Facsimile/tlcopieur: 403-592-4483 Email/courriel: [email protected] Mr. Tim McMillan Minister Ministry of Energy and Resources Government of Saskatchewan 2405 Legislative Drive Regina, SK S4S 0B3 Telephone/ tlphone: 306-787-9124 Facsimile/tlcopieur: 306-787-0395 Email/courriel : [email protected] Mr. Keith Lowdon Director, Petroleum Branch Manitoba Mineral Resources Suite 360 1395 Ellice Avenue Winnipeg, MB R3G 3P2 Telephone/tlphone: 204-945-6574 Facsimile/tlcopieur: 204-945-0586 Email/courriel : [email protected]

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The Honourable Bob Chiarelli Minister of Energy Government of Ontario 900 Bay Street, 4th Floor Hearst Block Toronto, ON M7A 2E1 Telephone/tlphone: 416-327-6758 Facsimile/tlcopieur: 416-327-6754 Email/courriel: [email protected] The Honourable David Zimmer Minister of Aboriginal Affairs Government of Ontario Suite 400 160 Bloor St E Toronto, ON M7A 2E6 Telephone/tlphone: 416-585-6763 Facsimile/tlcopieur: 416-314-2701 Email/courriel: [email protected] / [email protected] The Honourable Jim Bradley Minister of Environment Government of Ontario Ferguson Block 11th Floor 77 Wellesley St W Toronto, ON M7A 2T5 Telephone/tlphone: 416-314-6790 Facsimile/tlcopieur: 416-314-6748 Email/courriel: [email protected] / [email protected] Mme Martine Ouellet, Ministre Ministre des Ressources naturelles Province de Qubec 5700, 4e Avenue Ouest, A301 Qubec, QC G1H 6R1 Telephone/tlphone: 418-643-7295 Facsimile/tlcopieur: 418-643-4318 Email/courriel: [email protected]

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The Honourable Derrick Dalley Minister of Natural Resources 7th Floor, Natural Resources Building 50 Elizabeth Ave. P.O. Box 8700 St. Johns, NL A1B 4J6 Telephone/tlphone : 709-729-2920 Facsimile/tlcopieur: 709-729-0059 or 2076 Email/courriel : [email protected] Mr. Paul Molloy, P. Eng. Manager, Petroleum Engineering, Energy Branch Government of Newfoundland and Labrador P.O. Box 8700 4th Floor, 50 Elizabeth Avenue St. Johns, NL A1B 4J6 Telephone/tlphone: 709-729-6813 Facsimile/tlcopieur: 709-729-2508 Email/courriel: [email protected]

(Associations) Mr. Nick Schultz Vice President, Pipeline Regulation and General Counsel Canadian Association of Petroleum Producers 2100, 350 - 7 Avenue S.W. Calgary, AB T2P 3N9 Telephone/tlphone: 403-267-1175 Facsimile/tlcopieur: 403-266-3123 Email/courriel: [email protected] Mr. David Podruzny Vice-President, Business & Economics and Board Secretary Chemistry Industry Association of Canada 805, 350 Sparks Street Ottawa, ON K1R 7S8 Telephone/tlphone: 613-237-6215 Ext. 229 Facsimile/tlcopieur: 613-237-4061 Email/courriel: [email protected] & [email protected]

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Mr. Bryan Gormley Director, Policy and Economics Canadian Gas Association Suite 809, 350 Sparks Street Ottawa, ON K1R 7S8 Telephone/tlphone: 613-748-0057 ext. 315 Facsimile/tlcopieur: 613-748-9078 Email/courriel: [email protected] Mr. Murray Newton President, ENREG Group Inc. 444 Westminster Avenue Ottawa, ON K2A 2T8 Telephone/tlphone: 613-321-2771 Email/courriel: [email protected] Ms. Elise Herzig President and CEO Ontario Energy Association 45 Sheppard Avenue East, Suite 409 Toronto, ON M2N 5W9 Telephone/tlphone: 416-961-2339 ext. 227 Facsimile/tlcopieur: 416-961-1173 Email/courriel: [email protected] Mr. Gary Leach Executive Director Explorers and Producers Association of Canada 1060, 717 Seventh Avenue S.W. Calgary, AB T2P 0Z3 Telephone/tlphone: 403-269-3454 Facsimile/tlcopieur: 403-269-3636 Email/courriel: [email protected] Ms. Brenda Kenny President and CEO Canadian Energy Pipeline Association Suite 200, 505-3rd St. SW Calgary, AB T2P 3E6 Telephone/tlphone: 403-221-8750 Facsimile/tlcopieur: 403-221-8760 Email/courriel: [email protected]

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Mr. Jim Burpee President & Chief Executive Officer Canadian Electricity Association 350 Sparks Street, Suite 1100 Ottawa, ON K1R 7S8 Telephone/tlphone: 613-230-4762 Facsimile/tlcopieur: 613-230-9326 Email/courriel: [email protected] Mr. Paul Vogel Cohen Highley LLP One London Place 255 Queens Avenue, 11th Floor London, ON N6A 5R8 Telephone/tlphone: 519-672-9330 Facsimile/tlcopieur: 519-672-5960 Email/courriel: [email protected] Mr. John D. Goudy Scott Petrie LLP, Law Firm 200 - 252 Pall Mall Street London, ON N6A 5P6 Telephone/tlphone: 519-433-5310 Ext: 236 Facsimile/tlcopieur: 519-433-7909 Email/courriel: [email protected] Mr. David R. Core Director of Federally Regulated Projects Canadian Association of Energy & Pipeline Landowner Associations (CAEPLA) 257 -918 Albert Street Regina, SK S4R 2P7 Telephone/tlphone: 306-522-5000 Facsimile/tlcopieur: 306-949-5006 Email/courriel: [email protected]

(Other / Autre) Mr. Marc Eliesen 9294 Emerald Drive Whistler, BC V0N 1B9 Telephone/tlphone: 604-962-4160 Email/courriel: [email protected]

Trans Mountain Pipeline ULC Trans Mountain Expansion Project

File Number OF-Fac-Oil-T260-2013-03 02 Hearing Order OH-001-2014

2 April 2014

Hearing Order OH-001-2014 Page | 2

Table of contents

1 Hearing overview ...............................................................................................................3 1.1 Introduction ..............................................................................................................3 1.2 Hearing time limit ....................................................................................................3 1.3 What issues will the Board consider? ......................................................................4 1.4 Will there be an environmental assessment? ...........................................................4 1.5 What is evidence? ....................................................................................................4 1.6 What did Trans Mountain request in its application? ..............................................4 1.7 Where can I see Trans Mountains Project application? .........................................4 1.8 Project overview map ..............................................................................................5 1.9 Where can I get help or more information about the hearing process? ...................5

2 Participation in the hearing ..............................................................................................6 2.1 Commenters .............................................................................................................6 2.2 Intervenors ...............................................................................................................7 2.3 Can I withdraw? .......................................................................................................7

3 Hearing events, steps, and deadlines ................................................................................7 3.1 More information for commenters .........................................................................11 3.2 More information for intervenors ..........................................................................11

3.2.1 Participant funding .....................................................................................11 3.2.2 Intervenor information requests to Trans Mountain ..................................12

3.3 More information about the oral hearings .............................................................12 3.3.1 Oral Aboriginal traditional evidence .........................................................12 3.3.2 Oral argument ............................................................................................12 3.3.3 Oral hearing broadcasts and transcripts .....................................................12

3.4 More information about online workshops ............................................................13

4 Procedures and guidance ................................................................................................13 4.1 How do I prepare documents? ...............................................................................13 4.2 How do I file documents with the Board? .............................................................14

4.2.1 Intervenor document filing (e-filing) .........................................................14 4.2.2 Filing letters of comment ...........................................................................14 4.2.3 What if I cannot file documents online? ....................................................15 4.2.4 Who do I send or address documents to at the Board? ..............................15

4.3 How do I serve documents on others? ...................................................................15 4.4 How do I raise a question of procedure or substance that requires a Board

decision? ................................................................................................................16 4.5 Will you keep my evidence confidential? ..............................................................16

5 Who can I contact for help? ............................................................................................17 List of appendices

Appendix I List of Issues ....................................................................................................18 Appendix II Role of the Process Advisor Team ...................................................................19


1 HEARING OVERVIEW

1.1 Introduction The National Energy Board (NEB or Board) has a responsibility to regulate the construction and operation of certain interprovincial and international pipelines and power lines. A three-member Panel, representing the Board, will review the proposed Trans Mountain Expansion Project (Project) and will prepare a report and make a recommendation to the Governor in Council as to whether or not the Project should proceed and, if so, under what conditions. Even if the Board recommends that the Project should not proceed, the Board must still provide conditions for any potential approval by Governor in Council. On 16 December 2013, Trans Mountain Pipeline ULC (Trans Mountain) applied to the Board for permission to build and operate approximately 987 kilometres of new oil pipeline, and to reactivate 193 kilometres of existing oil pipeline, all between Edmonton, Alberta, and Burnaby, British Columbia. New pump stations would be added along the route. The Project would increase oil deliveries to Burnaby for export by marine tankers. To accommodate these deliveries and Project-related tanker traffic, Trans Mountain proposes to add new oil storage tanks and tanker berths at its Westridge Marine Terminal. The Board will hold a public hearing to consider whether to recommend approval of this Project. During the hearing process, the Board will receive written evidence that will be available in an online public registry on the Boards website. The hearing will also include oral portions. The Board will use various ways to gather and test evidence and will review and consider all of the evidence on the record before making a recommendation. The Board will rely only on the evidence on the record. The steps and deadlines in the hearing, as outlined in this Hearing Order, are important to make the hearing fair, transparent, and efficient, and they provide certainty to all those involved. The Boards recommendation report to the Governor in Council (Report) will consider whether the Project is in the public interest. After receiving the Report, the Governor in Council has three months to make a decision as to whether the Board should issue a certificate of public convenience and necessity. Alternatively, the Governor in Council may refer the recommendation, or any conditions in the Report, back to the Board for reconsideration. 1.2 Hearing time limit As detailed in a separate Board letter of 2 April 2014, the Board has determined that the Project application is complete to proceed to assessment. The Board now has 15 months to complete its review. It must submit its Report to the Governor in Council no later than 2 July 2015. This represents the maximum time to complete the review, subject to any modifications allowed under the National Energy Board Act (NEB Act).


The deadlines in this Hearing Order are critical to allow this hearing to be completed within the legislated time limit. 1.3 What issues will the Board consider? The issues the Board will consider in this hearing are found in the previously released List of Issues (attached as Appendix I). 1.4 Will there be an environmental assessment? The Project involves constructing and operating more than 40 kilometres of new pipeline. Such activities are listed in the Regulations Designating Physical Activities, which makes the Project a designated project under the Canadian Environmental Assessment Act, 2012. As a result, the Board is required to conduct an environmental assessment of the Project under that Act. The Board also considers environmental matters under the NEB Act. The Boards environmental assessment of the project will form part of its overall Report. The Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 can be found on the online public registry as a separate document dated 2 April 2014. 1.5 What is evidence? Evidence is what the Board will consider in its review of the Project. Evidence is comprised of the reports, statements, oral Aboriginal traditional information, photographs, letters, and other material that the hearing participants file during the hearing. Evidence is used to support ones position on the Project application. 1.6 What did Trans Mountain request in its application? Trans Mountain requested that the Board: recommend issuance of a certificate of public convenience and necessity, pursuant to

section 52 of the NEB Act, authorizing the construction and operation of the Project; issue an order, pursuant to section 58 of the NEB Act, exempting Trans Mountain from the

requirements of subsections 31(c), 31(d), and section 33 of the NEB Act in relation to yet-to-be-specified select temporary lands or infrastructure required for construction of the Project; and

grant such further and other relief as Trans Mountain may request or the Board may consider appropriate.

1.7 Where can I see Trans Mountains Project application? If you have internet access, you can find the Project application and all other documents filed in the hearing on the online public registry. The only exceptions are when a document is too large


to upload (see Section 4.2.3) or the Board has approved it as confidential information (see Section 4.5). If you do not have internet access, you can find the application at the NEB library located at 444 Seventh Avenue SW in Calgary, Alberta. As directed in the cover letter to this Hearing Order, Trans Mountain will post on its website a list of libraries and municipalities that have agreed to house an electronic version of the project application. Please visit or contact individual locations for viewing information. You can inquire about paper copies of the application by contacting Trans Mountain at 1-866-514-6700 (toll-free) or [email protected]. 1.8 Project overview map

1.9 Where can I get help or more information about the hearing process? The Board has many staff members that can answer questions throughout the hearing process. This includes a dedicated Process Advisor Team to provide you with information and assistance on how to effectively participate. Appendix II fully explains the Process Advisor Teams role. Section 5 contains contact information and lists other staff members that can help you with specific topics.


The Board has set up a dedicated Project webpage where you can access valuable information about this specific hearing process. You can also sign up to receive email updates from the Board during the Project review. To sign up, click here or visit the Boards Project webpage. The Board has developed a Hearing Process Handbook and related video that provide an overview of its hearing processes, in general. You can request copies of NEB publications through the NEB library by emailing [email protected] or calling 403-292-3562 (toll-free: 1-800-899-1265). The National Energy Board Rules of Practice and Procedure, 1995 provides detailed information about the Boards hearing processes. In the event of a discrepancy between the Rules and this Hearing Order, this Hearing Order should be followed.

2 PARTICIPATION IN THE HEARING The Board determined who will be allowed to participate in the hearing after holding an application process between 15 January and 12 February 2014. See the Boards 2 April 2014 Ruling on Participation, found on the online public registry, for information on how the Board determined the participants in this hearing, and their methods of participation. There are two methods of participation: commenters (Section 2.1) and intervenors (Section 2.2). The List of Participants in this hearing is attached to the Boards Ruling on Participation. This list identifies all participants and their approved method of participation. Part A lists the intervenors; Part B lists the commenters. 2.1 Commenters As a commenter, you are allowed to file one letter of comment. It will be placed on the online public registry, will form part of the hearing record, and the Board will read and consider it. Any additional letters or submissions will not be included on the record or considered. As a commenter, you will not be able to ask questions about evidence or present argument. Commenters will not be notified of, or receive, documents that are filed on the online public registry. You will need to monitor the registry if you wish to remain aware of new filings on the record. More details on letters of comment are found in Section 3.1.


2.2 Intervenors As an intervenor, you will be allowed to, among other things: file written evidence; ask written questions about Trans Mountains and other intervenors evidence; file, and potentially respond to, notices of motion; comment on draft conditions; and present written and oral argument.

If you give evidence, you must, in writing, answer any written questions from the Board, Trans Mountain, or other intervenors about your evidence.

Intervenors will be notified of, or receive, all documents that are on the online public registry. This includes the application, evidence, notices of motion, and all related materials. Depending on how active you are as an intervenor, you may face a significant time commitment during the hearing. You have a number of responsibilities. You also have various privileges, and participation opportunities afforded to you. Detailed information on intervenor deadlines and responsibilities is found in Section 3. Intervenors may apply for funding under the Boards Participant Funding Program to assist in preparing for and participating in the hearing process (see Section 3.2.1 for more details). 2.3 Can I withdraw? If you have been allowed to participate, you can withdraw from the hearing process at any time by telling us in writing (through e-filing, mail, fax, or hand delivery), although you are not required to formally withdraw if you no longer wish to participate. You may choose to still retain your participation status, take no action, and simply monitor the progress of the hearing. As an intervenor, unless you formally withdraw, you will continue to regularly receive email notifications and/or hard copies of documents.

3 HEARING EVENTS, STEPS, AND DEADLINES Throughout the hearing process, the Board will issue Procedural Updates that will fully describe certain identified events and steps in detail so that all participants understand what is expected and how to fulfil their responsibilities. Cover letters to documents and information that the Board releases may also contain valuable information about hearing procedures.


Hearing events and steps (responsible person[s] in bold)1 Date or deadline

(noon Pacific time; 1:00 pm Mountain time)

Project application filed with the Board. 16 December 2013

Board makes determination on Project application completeness, establishes hearing time limit, identifies hearing participants, and releases Hearing Order. 2 April 2014

Trans Mountain serves Project application and all related documents on each intervenor who has not already received a copy.

If unable to do so via email (i.e., due to an invalid or no email address), Trans Mountain may serve a letter on those intervenors asking how they wish to receive the application (e.g., hard copy, other electronic media).

Immediately after receiving Hearing Order

Intervenor workshop, part 1: written submissions (multiple online sessions) 8-14 April 2014

Board Round 1 information requests to Trans Mountain. 17 April 2014

Board releases draft conditions for information purposes. 17 April 2014

Intervenor Round 1 information requests to Trans Mountain. Each information request must be relevant to one or more of the issues identified in Appendix I. Information requests must be served on Trans Mountain, its counsel, and all other intervenors.

2 May 2014

Trans Mountain responds to Round 1 Board information requests. Responses must be served on all intervenors.

14 May 2014

Letter of comment workshop (multiple online sessions) Mid-May 2014

Trans Mountain responds to Round 1 intervenor information requests. Responses must be served on all intervenors.

29 May 2014

Aboriginal intervenors file notices of intent to provide oral traditional evidence. 5 June 2014

Motion Day #1 As considered necessary, intervenors file notices of motion on the adequacy of Trans Mountains responses to information requests.

Notices of motion must be served on Trans Mountain, its counsel, and all other intervenors.

11 June 2014

Board Round 2 information requests to Trans Mountain. 4 July 2014


21 July 2014

Letter of comment workshop (multiple online sessions) Mid-August 2014

1 All produced documents must be filed with the Board so they can be placed on the hearing record and considered.




Oral hearings: to collect, and allow questioning of, oral Aboriginal traditional evidence.

5 August 2014 4 September 2014

Trans Mountain files supplemental evidence. 4 September 2014

Commenters file letters of comment. Letters must be served on Trans Mountain and its counsel.

9 September 2014

Intervenor Round 2 information requests to Trans Mountain. Each information request must be relevant to one or more of the issues identified in Appendix I. Information requests must be served on Trans Mountain, its counsel, and all other intervenors.

11 September 2014

Trans Mountain responds to Round 2 intervenor information requests. Responses must be served on all intervenors.

25 September 2014

Motion Day #2 As considered necessary, intervenors file notices of motion on the adequacy of Trans Mountains responses to information requests.

Notices of motion must be served on Trans Mountain, its counsel, and all other intervenors.

2 October 2014

Intervenors file written evidence. Evidence must be relevant to one or more of the issues identified in Appendix I. Evidence must be served on Trans Mountain, its counsel, and all other intervenors.

3 November 2014

Intervenor information requests to other intervenors. Each information request must be relevant to one or more of the issues identified in Appendix I. Information requests must be served on the relevant intervenors, with a copy also served on Trans Mountain, its counsel, and all other intervenors.

14 November 2014

Trans Mountain information requests to intervenors. Each information request must be relevant to one or more of the issues identified in Appendix I. Information requests must be served on the relevant intervenors, with a copy also served all other intervenors.

14 November 2014

Intervenors respond to other intervenor information requests. Responses must be served on Trans Mountain, its counsel, and all other intervenors.

26 November 2014

Intervenors respond to Trans Mountain information requests. Responses must be served on Trans Mountain, its counsel, and all other intervenors.

26 November 2014

Board releases draft conditions for comment. 3 December 2014




Intervenor workshop, part 2: oral submissions (multiple online sessions) Mid-December 2014

Board Round 3 information requests to Trans Mountain. 18 December 2014

Board information requests to intervenors. 18 December 2014

Intervenors respond to Board information requests. Responses must be served on Trans Mountain, its counsel, and all other intervenors.

8 January 2015


8 January 2015

Trans Mountain files reply evidence. Evidence must be served on all intervenors.

13 January 2015

Intervenors and Trans Mountain file affidavits swearing evidence. 13 January 2015

Intervenors and Trans Mountain file notices of intent to present oral summary argument and/or reply argument. 13 January 2015

Intervenor workshop, part 2: oral submissions (multiple online sessions) Mid-January 2015

Trans Mountain files written argument-in-chief, including comments on draft conditions.

Comments on conditions must be included in written argument-in-chief; they cannot be raised for the first time during oral argument. No new evidence can be provided in written argument-in-chief. Written argument-in-chief must be served on all intervenors.

20 January 2015

Oral hearings: to hear Trans Mountains oral summary argument. No new evidence can be provided in oral argument. Time limits will be imposed.

Late-January 2015

Intervenors file written argument-in-chief and reply to Trans Mountain including comments on draft conditions.

Comments on conditions must be included in written argument-in-chief; they cannot be raised for the first time during oral argument. No new evidence can be provided in written argument-in-chief. Written argument-in-chief must be served on Trans Mountain, its counsel, and all other intervenors.

6 February 2015

Oral hearings: to hear intervenors oral summary argument and/or reply argument.

No new evidence can be provided in oral argument. Time limits will be imposed.

February 2015




Trans Mountain files written reply argument. March 2015

Hearing record closes. Immediately after finishing argument

Board releases its Report to the Governor in Council and provides it to the Minister of Natural Resources

2 July 2015 (time limit end)

3.1 More information for commenters Your letter of comment should be in one of Canadas official languages (English or French). It should describe your views on the Project and include: your name, mailing address, and phone number; the name of your organization, if you represent one; comments on how you would be impacted positively or negatively by the Project, or any

relevant information or expertise that you can offer to assist in the Boards review; and any information that explains or supports your comments.

There is no page limit to your letter, although clear and well-organized letters are encouraged. 3.2 More information for intervenors

3.2.1 Participant funding The Board is making funds available through its Participant Funding Program to help intervenors prepare for and participate in the hearing process. To receive funding, intervenors must first apply for it. An independent funding committee will make funding decisions throughout the hearing process as applications are received. Funding will only be paid out for hearing-related activities conducted after your funding application has been approved. The funding application process opened on 22 July 2013 to allow potential intervenors the opportunity to apply and receive funding decisions as early as possible, in the event they were granted intervenor status. Confirmed intervenors are again encouraged to apply for funding as early as possible, since, as noted above, funding will only be paid out for activities taking place after your application has been approved. The last day to apply for funding is 6 January 2015. Please review the Participant Funding Program Guide to determine how to apply and what funding will cover. To learn more about the Participant Funding Program, please visit the Boards program webpage, or contact the Participant Funding Coordinator at [email protected] or 1-800-899-1265.


3.2.2 Intervenor information requests to Trans Mountain The Board has provided intervenors with two opportunities to ask information requests of Trans Mountain. The deadlines are 2 May and 11 September 2014. Although you may do so, you are not required to ask information requests on both deadlines. The Board notes that intervenors may wish to ask the majority of their questions in the first round in order to gather evidence early on. Should intervenors wish, the second round may be used for asking questions to clarify or supplement the answers received in the first round, and to question additional evidence that Trans Mountain may file. 3.3 More information about the oral hearings The Board will hold two separate oral hearing portions: one to collect, and allow questioning of, oral Aboriginal traditional evidence; the other to hear oral argument by Trans Mountain and then intervenors. In both instances, Board staff will be available in the hearing room prior to the hearings to explain the layout of the hearing room and answer any process questions. 3.3.1 Oral Aboriginal traditional evidence Between 5 August and 4 September 2014, Aboriginal intervenors may choose to provide traditional evidence orally. This would be in addition to their written evidence, if any. This oral evidence may be questioned orally by other intervenors, Trans Mountain, or the Board. Aboriginal intervenors must, by 5 June 2014, notify us in writing of their intent to provide oral traditional evidence. The Board will provide all of the necessary details (e.g., dates, location(s), expectations) at a later time. 3.3.2 Oral argument In January 2015, the Board will hear oral summary argument from Trans Mountain. Intervenors will present oral summary argument and reply argument in February 2015. Intervenors and Trans Mountain must, by 13 January 2015, notify the Board in writing of their intent to present oral summary argument and/or reply argument. Full details on oral argument (including procedures, time limits, dates, location[s]) will be provided at a later time. 3.3.3 Oral hearing broadcasts and transcripts The Board will broadcast the oral hearings live over the internet. The Board will provide more information on this as the oral hearings approach. The oral hearings will also be transcribed daily. Transcripts will be available on the online public registry.


Anyone can order transcripts directly from International Reporting Inc. This can be done at the oral hearings, by emailing [email protected], or by calling 1-800-899-0006. There may be a fee for this service. 3.4 More information about online workshops Three distinct online workshops are planned to provide hearing participants with information and assistance in preparing submissions. To the extent that information is known at this time, these are summarized below. Workshop Session # Date

Intervenor workshop, part 1: written submissions (writing information requests, evidence, notices of motion; how to file documents)

1 Tuesday, 8 April 2014

2 Wednesday, 9 April 2014

3 Thursday, 10 April 2014

4 Friday, 11 April 2014

5 Monday, 14 April 2014

Intervenor workshop, part 2: oral submissions (presenting argument, commenting on conditions, oral hearing format)

Workshops are planned for mid-December 2014 and mid-January 2015. The number of sessions and exact dates will be determined and communicated.

Letter of comment workshop (writing and filing letters of comment)

Workshops are planned for mid-May and mid-August 2014. The number of sessions and exact dates will be determined and communicated.

Please visit the Boards Project webpage for complete details and updates on these workshops and for sign-up information. The Board will also communicate details when future sessions are confirmed. In the meantime, please contact the Process Advisor Team with any questions you may have.

4 PROCEDURES AND GUIDANCE 4.1 How do I prepare documents? Every document you file with the Board or serve on Trans Mountain or intervenors must refer to Hearing Order OH-001-2014. Address all documents to the proper recipient. For example, anything intended for the Board should be addressed to the Secretary of the Board (see Section 4.2.4 for contact information). Documents directed at others (e.g., responses to other participants information requests) should be addressed to them using the List of Participants: Part A Intervenors as a guide.


All documents must be in Adobe PDF format. To minimize technical issues, please use the latest version of Adobe Acrobat. Number document pages consecutively, including blank pages, so the electronic page numbers match the page numbers showing in your document. Due to system constraints, all files must be keep under 5 megabytes (MB). If you have a document over that file size, you will need to split it up into files that fall under the size limit before filing. Sign any document you file, unless it originates from an online form where signing is not an option (e.g., from your NEB account). Do not provide references to websites. Instead, provided the actual information you want to refer to. If using information sourced from a website, it must be filed in Adobe PDF format with an indication of the date the information was taken from the website. 4.2 How do I file documents with the Board? The Board requires you to file your documents online if you are able to do so. This can be done through the Boards e-filing system (for intervenors and Trans Mountain) or through your existing NEB account (for commenters). You cannot file documents by email. Documents received by email will not form part of the hearing record and will not be considered by the Board. 4.2.1 Intervenor document filing (e-filing) Intervenor documents should be filed through the Boards online e-filing system, using the following steps: From the above link, follow the instructions to submit your Project-specific document(s).

Refer to the Filers Guide to Electronic Submission for more information (also linked to from the systems main page).

You will receive an email containing a filing receipt. Print the receipt and sign it. Send the Board one signed hard copy of both the e-filed document(s) and the filing receipt

by mail, fax, or hand delivery (see Section 4.2.4 for contact information). 4.2.2 Filing letters of comment As a commenter, the easiest way to electronically file your letter is through your online NEB account, which you set up when applying to participate in this hearing process. That option will be available to you when you log into your account. If you are having difficulties doing this, you can also use the Boards e-filing system that is described in Section 4.2.1. You must serve your letter on Trans Mountain and its counsel using their contact information from either Part A or Part B of the List of Participants. See Section 4.3 for guidance on serving documents electronically.


4.2.3 What if I cannot file documents online? If you are unable to use the internet and cannot e-file documents, you can file documents with us in person, by mail, or by fax, using the contact information in Section 4.2.4. Mailed or couriered documents that are received after a filing deadline, but are date-stamped by the post office or courier on or before the deadline, will be considered as filed on time. If filing in person, by mail, or by fax, you must file one signed hard copy with the Board. If you are an intervenor, you must also send one hard copy to Trans Mountain, its counsel, and on any other intervenor that has said it cannot access files online (indicated on the List of Participants: Part A Intervenors). The Board will upload the file(s) to the online public registry. If you are a commenter, you must also serve one hard copy on Trans Mountain and its counsel using their contact information found in either Part A or Part B of the List of Participants. You can also use this method of filing if you have documents that cannot be scanned and made into an electronic copy (e.g, if it is physically too large to scan). In these cases, Board staff will put an electronic placeholder on the online public registry that indicates a document has been filed in hard copy and is available in the Boards library, but cannot be viewed or searched online. 4.2.4 Who do I send or address documents to at the Board? Use the following information when sending correspondence and documents to the Board.

Secretary of the Board National Energy Board 444 Seventh Avenue SW Calgary, AB T2P 0X8 Fax: 403-292-5503 (toll-free: 1-877-288-8803)

4.3 How do I serve documents on others? If you are an intervenor, you are required to serve your documents on Trans Mountain, its counsel, and all other intervenors. Trans Mountain is required to serve its documents on each intervenor. The List of Participants: Part A Intervenors identifies who is able to access online documents. Serving a document on these participants simply requires you to notify them by email when you have successfully filed the document; the easiest way being to forward them the filing receipt you received by email (see Section 4.2.1). Since you will need to send an email to multiple participants, you may want to consider creating an email group/list so that you can send one email to several addresses, as opposed to several emails to several addresses. If the List of Participants: Part A Intervenors indicates an intervenor is unable to access documents online, you must provide that intervenor with a hard copy of each document you file. Their preferred method of service (e.g., fax, mail) will be indicated next to their name.


If you, yourself, cannot use the internet, you will need to provide each intervenor and Trans Mountain with a hard copy of your filed documents, either by fax, mail, or hand delivery. 4.4 How do I raise a question of procedure or substance that requires a Board decision? If you want to ask the Board to do something, such as to extend a particular deadline, you must file a request. This is called a notice of motion. A notice of motion must include: a concise statement of the facts; the grounds for the request; the decision or relief requested; the impact of granting the request on other hearing participants; and any other information which supports the request.

Your notice of motion must be: in writing; signed by the person making the request, or by an authorized representative; divided into consecutively numbered paragraphs; served on, as applicable, Trans Mountain and all intervenors; and filed separately from any other correspondence.

If you are relying on case law or other authorities to support your position, you must include a book of authorities and highlight the specific passages you are relying on. The Board may provide an opportunity for Trans Mountain and intervenors to comment on a notice of motion. This decision would be based on the nature of the request, and the circumstances surrounding it. For more information, see section 35 of the National Energy Board Rules of Practice and Procedure, 1995. 4.5 Will you keep my evidence confidential? All evidence for this hearing will be available on the online public registry, unless you file a notice of motion to keep your evidence confidential under sections 16.1 or 16.2 of the NEB Act, and the Board grants your request for confidentiality. It is important to file your notice of motion, and await the Boards response, in advance of filing your evidence. This will prevent your evidence from appearing publically. If the Board grants your request for confidentiality, there are specific and important procedures to follow when filing that evidence. Please contact the Process Advisor Team to discuss these steps (see Section 5 for contact information).


5 WHO CAN I CONTACT FOR HELP? You are encouraged to contact Board staff with any questions you may have during the hearing process. By calling 403-292-4800 or 1-800-899-1265 (toll-free) and choosing the Trans Mountain Expansion Project from the list of hearings, you will be directed to someone who can help you with your Project-specific question. Callback numbers that are left will be followed-up on as soon as possible.

If you would prefer ask your questions by email, the following groups can help you: Group and role Email address Type of help

Process Advisor Team [email protected]

For questions or help regarding the hearing process and how to effectively participate in it.2

Regulatory Officers [email protected]

For questions or help with filing or serving documents, evidence or exhibit numbers, or if you are having technical issues.

Participant Funding Coordinator

[email protected]

For questions about the Boards Participant Funding Program and participant funding for this project.

2 Appendix II provides more details on what the Process Advisor Team can and cannot do to help you during the hearing process.


Appendix I List of Issues

1. The need for the proposed project. 2. The economic feasibility of the proposed project. 3. The potential commercial impacts of the proposed project. 4. The potential environmental and socio-economic effects of the proposed project,

including any cumulative environmental effects that are likely to result from the project, including those required to be considered by the NEBs Filing Manual.

5. The potential environmental and socio-economic effects of marine shipping activities that would result from the proposed project, including the potential effects of accidents or malfunctions that may occur.

6. The appropriateness of the general route and land requirements for the proposed project. 7. The suitability of the design of the proposed project. 8. The terms and conditions to be included in any approval the Board may issue. 9. Potential impacts of the project on Aboriginal interests. 10. Potential impacts of the project on landowners and land use. 11. Contingency planning for spills, accidents or malfunctions, during construction and

operation of the project.

12. Safety and security during construction of the proposed project and operation of the project, including emergency response planning and third-party damage prevention.

The Board does not intend to consider the environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline.


Appendix II Role of the Process Advisor Team

The Process Advisor Team can:

Answer your questions about the hearing process.

Explain what you can and cannot do in the role of a commenter or intervenor.

Organize and run public workshops.

Answer your questions about the Participant Funding Program and how to apply.

Provide samples and templates and answer your questions about them.

Explain your role in the hearing process.

Answer your process questions in person during the oral hearings. The Process Advisor Team cannot:

Make your case for you. That means they cannot: o Interpret the evidence for you. o Tell you what information you should give to the Panel members. o Tell you how to best present your information. o Write your questions or evidence.

Talk to the Panel members on your behalf.

Talk to Trans Mountain on your behalf.

File OF-Fac-Oil-T260-2013-03 02 2 April 2014 To: Those who filed Applications to Participate

Trans Mountain Pipeline ULC

Hearing Order OH-001-2014 Trans Mountain Pipeline ULC (Trans Mountain) Application for the Trans Mountain Expansion Project dated 16 December 2013 (Application) Ruling on Participation (Ruling)

The National Energy Board (NEB or Board) has made determinations about participation (or standing) and method (or level) of participation for the public hearing to review Trans Mountains application for the Trans Mountain Expansion Project. This Ruling provides a list of intervenors (Appendix I) and commenters (Appendix II), as well as the Boards reasons regarding those persons who were not granted participation or not granted the participation method they requested. The Board reviewed 2,118 Applications to Participate (ATPs). This includes six ATPs that were filed late and excludes those that were withdrawn. Of the 2,118 ATPs reviewed by the Board:

400 requested intervenor status and have been granted intervenor status; 798 requested commenter status and have been granted commenter status; 452 requested intervenor status and have been granted commenter status; and 468 have been denied.

Background On 16 December 2013, the Board received the Application. On 31 December 2013, the Board wrote to Trans Mountain and directed it to distribute an Application to Participate Notification (Notification). The Notification included a requirement for its publication in a number of newspapers and bulletins. The Board (including the Panel assigned to review the Application) undertook public engagement to explain the process.

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Those applying to participate could file their ATPs with the Board electronically, by fax, or by mailing a hard copy. The ATP form included references and links to information about what factors the Board may consider in making its decision about participation. Included with the ATP form was a specific document called Guidance Document on Section 55.2 Participation in a Facilities Hearing (Guidance Document). The ATP form indicated that applicants must clearly describe their interest in relation to the List of Issues, which was replicated in the form itself. To convey the importance of providing enough information for the Board to consider an applicants request for standing, it was emphasized that If you do not provide sufficient information on this ATP Form, you will not be allowed to participate. The deadline for submitting completed ATPs was originally noon on 12 February 2014. The deadline was subsequently extended to 11:59 p.m. Mountain Standard Time on 12 February 2014. Details on numbers of ATPs received are provided above. In the Boards letter of 31 December 2013, the Board said that Trans Mountain had until 19 February 2014 to provide the NEB with comments on the ATPs and, should it do so, it must serve its comments on those to whom the comments applied. Those receiving comments from Trans Mountain (which, in this case, was everyone that filed an ATP) were given until 4 March 2014 to respond to Trans Mountains comments. Comments by Trans Mountain On 19 February 2014, Trans Mountain wrote to the Board with what it described as general comments about how the Board should apply the participation test stated in section 55.2 of the National Energy Board Act (NEB Act). Trans Mountain stated that it takes no position on any of the specific applications submitted. In its comments, Trans Mountain reviewed the legislative test and the Guidance Document, and explained the relevance of the List of Issues. Trans Mountain said that, in its view, when an Act is amended, as was the case here, the alteration must be interpreted to have been made deliberately. In Trans Mountains submission, there is a requirement in section 55.2 for a direct nexus between the proposed project and the impacts on the applicant. Trans Mountain said the interest must be more than a mere indirect public interest. It stated that the legislative change is meant to avoid parties that may be affected by a project from being lost in the crowd of parties whose issues are unrelated to a specific project. In addition to discussing its view on how a person should be granted standing if he or she is directly affected, Trans Mountain also discussed the Boards discretion under section 55.2 to hear from any person who is determined to have relevant information or expertise. Trans Mountain described this as applicants who claim to have relevant information and expertise (emphasis added).

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Comments in response In response, the Board received comments from Ecojustice (on behalf the Swinomish, Tulalip, Suquamish, and Lummi Indian Tribes); Pacheedaht First Nation; North Shore NOPE; Graham Hallson, Ph. D.; the City of Vancouver; British Columbia Nature and Nature Canada; Lyackson First Nation; Christine Cunningham; Living Oceans Society and Raincoast Conservation Foundation (Living Oceans); Unifor; Mac Nelson; Susan Robertshaw; June Wells; and Frederick Holl. The Board considered all comments that were received on or before 4 March 2014. Comments by June Wells and Frederick Holl were received late without explanation and were therefore not considered. Living Oceans pointed out that Trans Mountain misquoted the test for relevant information or expertise in section 55.2, and said that a person in this category was not required to have both relevant information and expertise. It said the Board could grant standing to someone who is not an expert, but has relevant information only. Living Oceans also submitted that Trans Mountain disregarded the Boards obligations under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). In Living Oceans view, unlike section 55.2 of the NEB Act, where the Board has discretion (may consider) whether to hear from those with relevant information or expertise, under the CEAA 2012, once it is determined that an individual has relevant information or expertise, then the Board has no discretion and must ensure that such a person is granted standing. Finally, Living Oceans indicated, as did several others, that Trans Mountain was seeking too narrow of an interpretation of directly affected. It said one of the stated purposes of the CEAA 2012 was to provide meaningful participation during an environmental assessment. It submitted that both the CEAA 2012 and the NEB Act should be given a liberal and generous approach in determining which applicants are granted standing. In Living Oceans view, the interpretation of directly affected should be closer to the public law situation. A similar comment was made by Graham Hallson, Ph. D., as well as other commenters. They said that, in determining who is directly affected, the Board should not exclude individuals that have a community interest rather than a just a personal interest. In Mr. Hallsons view, if a spill were to occur, all those who use the shoreline of Burrard Inlet would be directly affected by the project. He also expressed the view that intervenor status should not be limited to those within close proximity of the project. In Lyackson First Nations response to Trans Mountain, it stated that section 55.2 of the NEB Act must be interpreted with regard for the unique and constitutional nature of First Nation rights. It said section 55.2 must be interpreted on a case-by-case basis. Pacheedaht First Nation indicated that the test for standing should not be restricted beyond the criteria set out in the Guidance Document. It said that, if the Boards applied test were to differ from the Boards Guidance Document, it should be given an opportunity to provide additional information.

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The City of Vancouver submitted that the List of Issues does not represent a final determination by the Board and, therefore, should not be viewed as an exhaustive list regarding the assessment of potential intervenors. Views of the Board The Jobs, Growth and Long-term Prosperity Act came into force in July 2012 and amended the NEB Act, including putting in place time limits for applications under sections 52 and 58. One of the amendments was the addition of section 55.2 to the NEB Act. Section 55.2 establishes what discretion the Board has with respect to granting participation rights or standing for certain Board proceedings. Section 55.2 states:

55.2 On an application for a certificate, the Board shall consider the representations of any person who, in the Boards opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.

These changes to the NEB Act promote fairness and efficiency by focusing consultation on individuals directly affected by an application and persons with relevant information or expertise. The addition of section 55.2 also assists the Board with collecting information that the Board considers to be relevant to its mandate and the application before it. If you are directly affected, you will be given an opportunity to present your concerns to the Board, and the Board will make its decision based on the Application and all of the evidence before it. When assessing ATPs, the Board applies the criteria provided in section 55.2 of the NEB Act, the List of Issues (to determine the relevance of the issues people wish to address), and the Guidance Document. It is up to the person applying to participate to provide enough information to demonstrate to the Boards satisfaction that they are either directly affected by a proposed project or are in possession of relevant information or expertise. The Board makes its decision under section 55.2 of the NEB Act on a case-by-case basis, taking into account the specific facts and circumstances of each project application, and the information provided in the completed ATP. Directly affected (Category 1) When the Board assesses whether a person applying to participate is directly affected, the Board looks at how the person uses the area where the project will be located, how the project will affect the environment, and how the effect on the environment will affect the persons use of the area. The closer these elements are connected (their proximity), the more likely the person is directly affected. An effect that is too remote, speculative, or is not likely to impact the persons interests, will not lead to finding an applicant to be directly affected. The Board also considers interests and direct effects that that are commercial or financial (including employment) as well uses of land and resources for traditional Aboriginal purposes.

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The Board considered all the information in the filed ATPs, including the address provided or any references to specific locations, and, where applicable and possible, compared this to the location of the existing pipeline and proposed and alternative pipeline corridors, as well as the marine shipping corridor. While it was up to each applicant to demonstrate direct effects, given that Trans Mountain did not object to any individual ATP, as long as the applicant showed with reasonable probability that they have a specific and detailed interest that was sufficiently affected, then the Board granted standing. Each decision was made on a case-by-case basis and the Board read and considered the entirety of each ATP. The Board took what it considers to be a generous approach in making standing determinations which is reflected in the significant number of applicants for participation that were granted some form of standing. However, the Board was not persuaded by the submission of Living Oceans and others that a public law type of test for standing should be used, as this was not specified in the legislation. The Board was also not persuaded, as Mr. Hallson argued, that a general community interest was sufficient to show a direct effect. As stated in the Guidance Document, to be directly affected, the Board considers whether a person has shown a specific and detailed interest, as well as a sufficient direct project impact on the interest. The List of Issues is helpful in determining this. Where an applicant raised an issue outside the List of Issues, the obligation was on the applicant to show why this was a specific and detailed interest that is directly affected by granting or refusing to grant the Application. In response to Lyackson First Nation and other Aboriginal groups that applied, the Board is in agreement that it must consider the unique and constitutional nature of Aboriginal rights. The Board has done this. Relevant information or expertise (Category 2) In determining whether an applicant has relevant information or expertise, the Board considers whether the applicant has met the onus of showing possession of relevant information or expertise. In response to comments on this issue, the Board agrees with those who noted that Trans Mountain misquoted the test for relevant information or expertise. Regardless whether the CEAA 2012 or NEB Act standing test is considered, the Board has discretion in determining whether an applicant has shown that he or she has relevant information or expertise. The Board accepts the submission of Living Oceans and others that, under the CEAA 2012, if the Board determines that, in its opinion, an applicant has relevant information or expertise about the environmental assessment required under CEAA 2012, then the Board is to provide an opportunity for some type of participation. Practically, this will not change how the Board assesses this category of ATPs since the Board has always benefitted from hearing from those with expertise or relevant information.

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Group representations Applicants who applied on the basis that they represent directly affected persons were asked in the ATP form to describe who they represented, to list the persons being represented, and to describe how the persons being represented are directly affected. In order for a representative (such as a lawyer or organization) to be granted standing on this basis, they must be able to demonstrate to the Board's satisfaction that the persons they represent are directly affected. For example, if an organization does not demonstrate to the Board's satisfaction how it or any of its identified members will be directly affected, it will not be granted standing on the basis of being directly affected. Method of participation Once the Board makes its determination about standing, the next Board determination is around the method of participation. While the standing tests (Category 1 or Category 2) determine whether a person is allowed to participate, it does not dictate the method of participation that will be granted. Decisions by the Board about the appropriate method of participation were based on what process and participation rights were most appropriate for a person to have his or her representations considered and which meets natural justice requirements. For instance, if the concern expressed was temporary in nature (e.g., potential traffic disruptions in a particular neighbourhood due to construction), in some cases, the Board determined that the person was directly affected, but an appropriate and efficient method of participation was as a commenter (i.e., submitting a letter of comment), not as an intervenor. The Board always made case-by-case decisions with respect to method of participation since very few ATPSs were identical. All interests raised in the ATPs were considered when deciding on method of participation. Late ATPs The Board received late ATPs from Devon Canada Corporation, Samson Cree Nation, Edward Farquhar, Elizabeth Latta, Don Chalmers, and the United States Environmental Protection Agency. Deadlines are extremely important for the efficiency of this proceeding. In this case, the Board decided to accept all of the ATPs that were filed late. While explanations for lateness varied, at this stage, there was no prejudice to anyone involved in the process, and the Board decided to accept and consider the late filings. The Boards rulings on participation and method of participation for these late ATPs are included below. Specific ATP decisions Intervenors Those accepted as intervenors are identified in the List of Participants: Part A Intervenors, attached as Appendix I to this Ruling.

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Those who have been granted intervenor status have demonstrated to the Boards satisfaction that they are either directly affected by the proposed project or are in possession of relevant information or expertise that will assist the Board in its assessment. In addition, for these applicants, the Board has determined that being an intervenor is the method of participation that will best meet the needs of the applicant and the Board. As an intervenor, you will be allowed to:

file written evidence; ask written questions about Trans Mountains and other intervenors evidence; file, and potentially respond to, notices of motion; comment on draft conditions; and present written and oral argument.

Intervenors should refer to the Boards OH-001-2014 Hearing Order for an outline of their rights and responsibilities, as well as the steps and deadlines in the hearing process. Commenters Participants who requested commenter status, and who the Board has determined are directly affected or have relevant information or expertise, have been granted commenter status. Commenters are identified in the List of Participants: Part B Commenters, attached as Appendix II to this Ruling. A letter of comment is a valuable and important contribution to assist the Board in making its recommendation about a project. Letters of comment permit participants to express their views to the Board without having to provide sworn evidence, or be potentially subject to questioning on those views. Just as every ATP was read by the Board, every letter of comment will be read and considered. Commenters should refer to the Boards OH-001-2014 Hearing Order for guidance and deadlines for submitting letters of comment. Where intervenor status was requested and commenter status was granted Some persons who requested to participate as an intervenor are instead being provided the opportunity to submit a letter of comment. In these cases, the Board determined that the person was directly affected, but an intervenor method of participation was not appropriate or necessary for the concern raised. Instead, the Board determined that being a commenter provides the best means by which these participants can have their representations considered by the Board. Further reasons for reducing the requested method of participation from intervenor to commenter are provided below.

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Many applicants submitted that they were directly affected by the proposed project due to concerns related to the risk of a pipeline spill or rupture and any resulting environmental effects. The Board understands this concern and takes all available actions to protect the public and the environment. As indicated in the Guidance Document, the Board may consider factors such as the degree of connection between the project and the identified interest, and the likelihood and severity of the harm the person could be exposed to. These factors recognize that not every person who applied to participate in this proceeding would be affected by the proposed project in the same way. For example, persons with compromised health could be more affected by emissions (such as dust) than others, such as during construction or when oil storage tanks are operational. Whether there will be these types of environmental effects has not been determined yet. Below are additional specifics as to the reasons for the Boards decisions to alter certain applicants requested method of participation from intervenor to commenter. A. Temporary effects

If the project were to go ahead, during construction, there are likely to be some temporary effects, including:

noise; dust; traffic congestion; and interference with views, access to business or home, and commutes.

On a case-by-case basis, the Board has determined that commenter is the method of participation that will best meet the needs of people with these concerns, as well as the needs of the Board.1 In addition, aspects of the project may cause impacts from operations and increased tanker traffic. Where ATPs stated these concerns, the Board made case-by-case decisions about whether an intervenor or commenter method of participation was appropriate in the circumstances. Where the concerns were more detailed and specific with respect to the interest specified and the likely resulting individual effects, an intervenor method of participation was granted. ATPs with less detail about these issues were more likely to receive commenter status. Please see the List of Participants (Part A Intervenors; Part B Commenters), attached as Appendices I and II to this Ruling, for the type of participation granted in these cases.

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1 The Board is mindful that temporary effects, such as air emissions, could cause severe impacts to some individuals (e.g., those with severe allergies). Where an ATP included details about health-related concerns associated with temporary effects, the Board has considered these on a case-by-case basis, and, where there is a reasonable probability of a non-trivial or transient direct probable effect, the Board has granted these persons intervenor status. There were also ATPs that raised temporary effects but also raised other issues. Like all ATPs, these were addressed on a case-by-case basis.

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B. Effects of accidents and malfunctions on interests and activities In the event of an accident or malfunction, there could be a negative effect on air, land and water and on the ability of people to use land, water or their property. Some ATPs focused concerns about the effects of spills on their property, or on public land or water that people use for recreation and other activities (e.g., beaches, boardwalks, hiking trails, hunting, and fishing). In addition, people brought forward concerns that the economies and character of island and waterfront communities could be seriously harmed by spills. While the Board recognizes that these effects could occur in the event of a spill, accident, or malfunction, the Board has determined that, in many instances, a letter of comment provides the best means by which these participants can have their representations considered by the Board. However, where the person provided detailed information about specific direct effects on personal property or business use, for example, and established a sufficient proximity, the Board granted intervenor status if it was requested. The Board also granted intervenor status to directly affected municipalities as they would be the first responder in an emergency situation in or around their area. Several ATPs described concerns about potential impacts of a pipeline spill or rupture on those attending schools or in care centres. In some instances, the applicant said that the school or care centre was near or close to the pipeline or proposed corridor, but sometimes the name or location of the institution was not provided. In the latter cases, the degree of connection between the project and the interest was not established for that particular aspect of the ATP. Conversely, if specifics were provided about location, this factored into the Boards case-by-case determination. Please see the List of Participants (Part A Intervenors; Part B Commenters), attached as Appendices I and II to this Ruling, for the type of participation granted in these cases. C. Those with relevant information and expertise The Board has determined that some relevant information and expertise put forward in ATPs can most efficiently and effectively be gathered through letters of comment. Please see the List of Participants (Part A Intervenors; Part B Commenters), attached as Appendices I and II to this Ruling, for the type of participation granted in these cases.

Where participation has not been granted While 1,650 applicants (78 per cent of all applicants) were granted participation, some persons who requested to participate as either an intervenor or as a commenter have not been granted standing to participate in this proceeding. These persons did not demonstrate to the Boards satisfaction that they are either directly affected by the project, or are in possession of relevant information or expertise that will assist the Board in its assessment. Accordingly, the Board has denied standing in this proceeding to these individuals.

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The matters raised within these ATPs related to issues outside of the Boards mandate, such as oil sands development, climate change, sustainable energy alternatives, or were related to issues that were not specific to the particular applicant or to the project. In some instances, such concerns were stated by persons that lived vast distances away from the project. Stating general concerns about pipelines or how a spill might affect a community as a whole, was not sufficient to show a direct effect. There were also individuals who referred only to effects from the Chevron tank farm and refinery in Burnaby. The Chevron facilities are not part of the project application. Therefore, in these instances, standing was denied. The Board also denied standing where the applicant stated only global support for pipelines or made general references to benefits, such as having better jobs because of pipelines. These persons did not demonstrate to the Boards satisfaction that they were directly affected. As noted earlier, to convey the importance of providing enough information for the Board to consider an applicants request for standing, it was emphasized that If you do not provide sufficient information on this ATP Form, you will not be allowed to participate. In certain cases, sufficient information was simply not provided, and these applicants were denied standing. Those denied participation are listed in Appendix III to this Ruling. If you have questions about the Boards hearing process, please see the Boards OH-001-2014 Hearing Order or, as required, contact the Boards Process Advisor Team for this hearing by phone at 403-292-4800 or 1-800-899-1265 (toll-free), or by email at [email protected]. Yours truly, Sheri Young Secretary of the Board Attachments

Attachment to Board Letter / Pice jointe la lettre de lOffice

Dated 2 April 2014 / date du 2 avril 2014 Page 1 of/sur 138

Appendix I List of Participants: Part A Intervenors Annexe I Liste des participants : Partie A Intervenants

LIST OF PARTICIPANTS / LISTE DES PARTICIPANTS

Trans Mountain Pipeline ULC Application for the Trans Mountain Expansion Project

Demande concernant le projet dagrandissement du rseau de Trans Mountain

HEARING ORDER OH-001-2014 ORDONNANCE DAUDIENCE OH-001-2014

APPLICANT / DEMANDEUR

Mr. D. Scott Stoness Vice President, Finance & Regulatory Affairs Kinder Morgan Canada Inc. Suite 2