Trans Mountain fights to sidestep fire bylaws at Burnaby terminal

Burnaby is fighting back against Trans Mountain’s request to be excused from certain fire safety plans.

In early December, the Crown corporation that is building a pipeline from Edmonton to a Burnaby terminal filed a request to the Canada Energy Regulator asking for a “constitutional declaration” that would allow it to build without having secured proper fire safety permits from the city. Since then, the city has mounted a defence and last week filed sworn affidavits accusing Trans Mountain of dodging critically important fire safety requirements.

The central issue is how quickly could the fire department respond to a blaze at the facility. Right now, the Burnaby terminal has 13 storage tanks with capacity to hold 1.6 million barrels of oil. The expansion plans would see the number of storage tanks doubled.

Earlier this year during a surprise inspection of the site, a tank fire simulation was controlled within two and a half hours (the target range is four hours). But Burnaby Fire Chief Chris Bowcock said at the time he wasn’t satisfied, and wanted the department to be able to provide a strong response to a fire within 10 minutes otherwise nearby residents would be at risk.

In a sworn affidavit dated Dec. 22, Bowcock told the Canada Energy Regulator the “key issue is Trans Mountain’s non-compliance with the fire lane standards established by Burnaby’s Fire Services Bylaw at the terminals.”

Those standards would require access routes that are wide enough, capable of supporting heavy fire trucks, have turning radii large enough to accommodate a fire truck, and have signs clearly indicating these are fire lanes. The affidavit says these requirements are “mandatory” and “applied consistently.”

“As fire chief, I view these requirements as the basic minimum standard for commercial and industrial development projects. For developments with a higher level of fire risk, such as a storage site for hydrocarbons, I would prefer to see more robust fire access standards (wider fire lanes and turning radii),” Bowcock wrote.

Elsewhere in the affidavit, he explains that fire lanes are not just about accessing a site but are also about where firefighting equipment can be set up and where firefighters can be deployed.

“Without sufficient space within the fire lane for these purposes, in the case of a hydrocarbon release and/or fire event, firefighting personnel may be placed in closer proximity to flammable hydrocarbons, increasing risk of harm or loss of life,” he wrote.

“As a fire chief with extensive experience in the context of planning hydrocarbon storage facility firefighting response procedures and pre-plan development, it is my view that there are multiple potential tank fire scenarios within the terminals that would be unextinguishable due to lack of safe firefighting positions.

“With these existing risks in mind, it is very concerning to me that Trans Mountain would be seeking confirmation of fire lane access plans on the basis of a lower standard than the mandatory minimum contained in Burnaby’s Fire Services Bylaw,” he wrote.

In documents filed with the regulator, Trans Mountain says Burnaby is being “unreasonable” by not issuing its building permits.

The Crown corporation says it has “sought to satisfy” Burnaby by providing a fire truck access plan, and amending it “repeatedly,” but “some of Burnaby’s requests cannot be implemented at the (Westridge Marine Terminal) and Burnaby Terminal due to site constraints, including grading and pipe location.”

Trans Mountain told Canada’s National Observer it has fire safety plans, including early fire detection and fire suppression systems and training exercises, but did not answer questions relating to fire lanes or how the delayed permitting is affecting its construction schedule.

In its application to the regulator, Trans Mountain stresses the urgency of its request is related to the construction schedule, which is long-delayed and pushing the cost of the project ever higher.

“Further permitting delays for the terminal work will imperil the project construction schedule,” Trans Mountain’s application reads, adding that if it isn’t given relief by Jan. 17, it will not be able to finish the project by its planned in-service date of December 2022.

In an affidavit from last year, Trans Mountain CEO Ian Anderson said each month the company is delayed from bringing the pipeline into service represents about $100 million in lost revenue. He also said construction delays of “several months” would result in “hundreds of millions in excess capital costs.”

On Dec. 23, on behalf of Burnaby, Ratcliff LLP senior counsel Gregory McDade responded to Trans Mountain’s request to sidestep fire safety requirements to say the city recognizes Trans Mountain’s terminals have federal approval, and the city cannot reject permits if it would be impossible for TMX to comply, but said this “constitutional issue does not arise here,” calling the fire safety bylaws “reasonable” and “constitutionally valid.”

“It is Trans Mountain’s failure to follow the Fire Services Bylaw and Building Bylaw that has prevented the issuance of permits, and it is Trans Mountain resistance to following these city obligations that has led to any time delays,” he wrote.

He further noted the CER is not a municipal regulator, and it “should be cautious” about overruling the very department that would have to respond to any emergency. McDade also wrote Trans Mountain has not provided evidence it would be impossible to meet the permitting requirements, and that before the commission accepts such a claim, it should be subjected to detailed scrutiny.

“The standard on constitutional matters is high, and mere added expense or inconvenience is not sufficient,” he wrote.

Megaprojects like TMX are susceptible to cost overruns because slight problems can cascade into larger delays given there are many moving pieces that have to happen in a certain order.

A report published in September by West Coast Environmental Law estimated the cost of TMX is approaching $20 billion, far higher than the price tag of $12.6 billion announced in February 2020. That report also details how the costs have grown substantially from the $5.4 billion first estimated by Kinder Morgan in 2013.