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Terasen/Kinder Morgan's application must be denied PDF Print E-mail
Earth News
Wednesday, 12 October 2005 03:00

Terasen/Kinder Morgan's Application Must be Denied PEJ News - Joan Russow Global Compliance Rsearch Project - The application of Terrasen/Kinder Morgan must be denied. BC and Canadian governments will demonstrate dereliction of duty if this application is approved. Submission to the BC Commission re: The Application by Kinder Morgan and on behalf of the Council of Canadians (Victoria Chapter)

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Terasen/Kinder Morgan's application must be denied
The application of Terasen/Kinder Morgan must be denied. BC and Canadian governments will demonstrate dereliction of duty if this application is approved.

SUBMISSION TO THE BC COMMISSION

RE: THE APPLICATION BY KINDER MORGAN

Joan Russow PhD Global Compliaince Research Project
and on behalf of the Council of Canadians (Victoria Chapter)
October 12, 2005

The application of Kinder Morgan should be denied for the following reasons:

1. FAILURE OF THE BC COMMISSION TO EXERCISE ITS DUTY

(i) BC citizens have a legitimate expectation that the BC Commission will comply with the BC Commission Act. Under Art 38 of the act the Public Utility must
(a) provide, and
(b) maintain its property and equipment in a condition to enable it to provide,

a service to the public that the commission considers is in all respects adequate, safe, efficient, just and reasonable

(ii) BC citizens have a legitimate expectation that the BC commissioner will fairly comply with Article 46 (2) of the Public Utility Act: (2) the commission has a discretion whether or not to hold any hearing on the application.On September 9 2005, the Commissioner held an intervener process presumably for the interveners to advise the Commissioner on whether there should be only written submissions or both written and oral submissions. Most of the participants not associated with the industry called for public town hall meetings and many of these participants supported having an "oral hearing" with cross examination. The Commission?s report misrepresented the meeting and its exhibit A iv (See previous submission on exhibit

A iv: comment on September 9, meeting of interveners).

Under the Act, the Commissioner is required to not be in conflict of interest but there is no provision against the Commissioner being biased.

(iii) BC citizens had a legitimate expectation that the when, at the Intervener meeting, a spokesperson for the application stated "Perhaps it should be noted that this application is under Section 54 [Section 53] of the Utilities Commission Act and that section of the Act does not have a requirement for a hearing process or a public hearing of any type". (Johnson, September 9, 2005), that the Commissioner would have responded (i) that the under Article 53 1 4, the commission must inquire into the application and may for that purpose hold a hearing; and that under Article 53 5a, the Commission must determine whether in commissioner's opinion the "the consolidation, amalgamation or merger would be beneficial in the public interest"

(iv) BC citizens have a legitimate expectation that given the duty of the Commissioner to determine whether the consolidation, amalgamation or merger would be benefical in the public interest, that there would be some criteria for determining what would constitute being beneficial in the public interest.

2. FAILURE OF THE BC GOVERNMENT TO EXERCISE ITS DUTY

(i) BC citizens have a legitimate expectation that the provincial government would comply with its statutory law.
Compliance with statutory regulations

Under Act 6 (1) (1) of the Environmental Assessment Review Act the following commitment is made:

Even though a project does not constitute a reviewable project under the regulations, the minister by order may designate the project as a reviewable project if

(a) the minister is satisfied that the project may have a significant adverse environmental, economic, social, heritage or health effect, and that the designation is in the public interest, and

Even though a project does not constitute a reviewable project under the regulations, the minister by order may designate the project as a reviewable project if

(a) the minister is satisfied that the project may have a significant adverse environmental, economic, social, heritage or health effect, and that the designation is in the public interest

(ii) BC citizens have a legitimate expectation that the provincial government would comply with international obligations.

The BC government was fully consulted prior to Canada?s signing and ratifying ot the Convention on Biological Diversity and the Framework Convention on Climate Change. The two Conventions were endorsed at the Cabinet level, and the environment minister, was given the mandate to move, at a meeting in Alymer in November 1992 of Council of Environment Ministers, for the ratification of the two conventions. Subsequent to this meeting in December 1992, the Canadian government ratified the two conventions. Since there was full consultation with British Columbia before the ratification, the BC government is bound by both Conventions.

(a) Environmental Assessment Review

Under the Convention on Biological Diversity, there is a requirement to do an environmental assessment review of projects that could contribute to a loss or reduction of biodiversity and under the Framework Convention on Climate Change, there is a requirement to do an environmental assessment review of activities that could contribute to climate change.

The Terrasen/Kinder Morgan application, if accepted, would contribute to a loss
Or reduction of biodiversity, and would contribute to climate change.

(b) Precautionary principle

Since 1972, the essence of the precautionary principle was agreed to by the global community,

Determination to shape actions with prudent care for the environment principle

A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment...Declaration of the United Nations Conference on the Human Environment (Declaration of the United Nations Conference on the Human Environment (1972)

1972

This principle was further reinforced in 1982, in the World Charter of Nature:

Avoidance of activities if adverse effects not fully understood principle

Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed (11 b) World Charter of Nature ( 1982

Avoidance of irreversible damage to nature principle

Activities which are likely to cause irreversible damage to nature shall be avoided (11. a) World Charter of Nature ( 1982)

In 1992, in the UNCED documents there is the full enunciation of the precautionary principle. This principle is present in all the documents in differing forms:

In the Rio Declaration it is expressed in the following way

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." ( Rio Declaration, 1992).

: and in the Framework for a Climate Change Convention it is phrased in a different way:

3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and
reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out co-operatively by interested Parties. (Climate Change Convention, 1992)

The application of Terrasen/ Kinder Morgan if granted would violate the precautionary principle.

There is sufficient evidence that the activities of the company Kinder Morgan have been a threat to the environment, to justify the refusing the application. If one googles Kinder Morgan and ?environment" or "compliance', or "pollution" etc. one finds too many references for anyone to be confident about their environmental record. Here is just one of many articles.

: Feds slap local energy company;
In one of largest orders of its kind, Kinder Morgan unit must change how it operates

SOURCE: Staff

BYLINE: TOM FOWLER
BODY: Federal pipeline regulators have ordered Houston-based Kinder Morgan Energy Partners to change how it operates more than 3,900 miles of pipelines in six Western states following a recent string of accidents.

In what is being called one of the largest regulatory actions undertaken by the U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration, the company must restructure its internal inspection program, get an independent review of its operations and analyze recent incidents, including one that killed five people.

The order didn't come as a surprise to the company - a spokesman said it had been working with regulators on the issues for months and has fixed some already. But it is unusual in its breadth, affecting more than 40 different pipeline segments that carry gasoline, diesel and jet fuel throughout the West.

Most of the recent incidents were due to third parties, such as construction backhoes digging nearby, striking the pipelines. But in its letter to the company, regulators said the recent accidents "indicate a widespread failure to adequately detect and address the effect of outside force damage and corrosion. This failure has systematically affected the integrity of the Pacific Operations unit."

The Kinder Morgan companies operate more than 25,000 miles of pipelines in the nation, carrying crude oil, natural gas and refined products.

While the company has invested in new construction, much of its growth has come through acquisitions. Most of the pipeline system in question came to the company in 1998 when it acquired Santa Fe Pacific Pipeline.

Kinder Morgan said it would spend more than $ 900 million this year maintaining and operating its pipelines and other assets.

"We share the PHMSA's priorities to operate our pipelines as safely as possible and to protect the public, employees and the environment," company spokesman Larry Pierce said. "These are top priorities at Kinder Morgan."

About 60 percent of accidents along pipelines under Kinder Morgan's Pacific Operations were caused by what is called outside force damage, namely another company or individual damaging the pipeline with equipment, according to the Transportation Department.

One of the worst accidents occurred Nov. 9, 2004, in Walnut Creek, Calif., near San Francisco. Contractors laying a water main are thought to have struck a pipeline with a backhoe, sparking a blast that killed five workers.

But some incidents are due to age and wear and tear. An April 27, 2004, release of 105,000 gallons of diesel into a marsh near Fairfield, Calif., was due to a patch of corrosion almost 14 feet long. The firm paid more than $ 5 million in fines, penalties and restitution in that case.

Damon Hill, a spokesman with the PHMSA, said the broad scope of the order is due to the large number of incidents in the company's Pacific operations: 44 since Jan. 1, with 14 resulting in the release of more than five barrels of refined petroleum.

"We didn't find any clear-cut violations of integrity management rules, but we did see some weaknesses in the use of their tools to interpret data," said Hill.

For example, the order notes that in some instances Kinder Morgan used internal pipe inspection tools that aren't sufficient to identify certain defects.

The company's organizational structure also expects workers in different departments to identify specific pipeline safety threats, but it does not allow workers from one department easy access to data from another department, the order says.

Kinder Morgan has 120 days to submit a revised integrity management plan to regulators. The company must also provide a list of outside experts it may use to do the independent evaluation within 30 days.

"It's possible, we may choose to appeal certain elements in the order, but we've been working with them on these issues for months," Pierce said.

. PIPELINE ISSUES

Kinder Morgan Energy Partners' 3,900-mile-long Pacific Operations system, which supplies six Western states with gasoline, diesel fuel and jet fuel, has been hit by a rash of accidents in the past two years, including:

May 28: Gasoline leaks close to a highway in the Fort Bliss Military Reservation near El Paso. The company concluded the cause was defective pipe.

April 1: Gasoline and diesel fuel leak into Summit Creek that flows into Donner Lake near a ski resort outside of Truckee, Calif. Company had no additional information.

Nov. 22, 2004: About 96,000 gallons of gasoline spray the air near San Bernardino, Calif., polluting a portion of the Mojave Desert and shutting down Interstate 15 for hours. Company concluded the line had been damaged by a third party.

Nov. 9, 2004: In Walnut Creek, Calif., five contractors were killed when a backhoe used to lay a water main hit a pipeline, sparking a blast.

April 27, 2004: Corroded pipe leads to about 105,000 gallons of diesel fuel fouling the Suisun Marsh near Fairfield, Calif., killing wildlife.

Source: Company and Transportation Department

It appears that Kinder Morgan is involved with cycle of error- pollute itself (or fail to properly monitor associated industries) pay the fine, attempt clean-up and then move on. Environmental destruction, however, is often irreversible. The BC government and the BC utilities commission will be derelict in their duty to the public and will be negligent if they permit this application.

3. FAILURE OF THE CANADIAN GOVERNMENT TO EXERCISE ITS DUTY

(i) BC citizens have a legitimate expectation that the Government of Canada will comply with its obligations to the rights of future generations to natural resources:

1.Compliance with the Rights of future generations to the non depletion of vital natural resources (intergenerational equity principle)

The obligation to future generation has been enunciated as a principle for over thirty years, and thus has become a principle of international customary law and thus a norm of international law

In the United Nations Convention for the Protection of Cultural and Natural Heritage:

"Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in articles 1 and 2 and situated on its territory, belongs primarily to that State. (United Nations Convention for the Protection of Cultural and Natural Heritage", 1972)

In the Stockholm Convention of 1972, the requirement to preserve our environmental heritage and the requirement to save a representative sample of natural ecosystems for future generations were being recognized:

"The natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations" (Principle 2

In UN Resolution 37/7, 1982

Reaffirming that [humans] must acquire the knowledge to maintain and enhance his ability to use natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations,(UN Resolution 37/7, 1982)

In the Convention of Biological Diversity

"to conserve and sustainably use biological diversity for the benefit of present and future generations (Biodiversity Convention, UNCED, 1992)

and in the Framework Convention on Climate Change:
" to protect the climate system for present and future generations"

Around the world many of the basic resources on which future generations will depend for their survival and well-being are being depleted and environmental degradation is intensifying, driven by unsustainable patterns of production and consumption, unprecedented growth in population, widespread and persistent poverty, and social and economic inequality (Preamble, 1.2. International Conference on Population and Development, 1994)

(ii) BC citizens also have a legitimate expectation that the Government of Canada will comply with its obligations and commitments under the aforementioned international conventions.

In 1993, the Canadian government carried out an Environmental Assessment Review of NAFTA, and filed a report. In this report, Canada made the following commitment to the Canadian public:

The Canadian government in its Canadian Environmental Review of NAFTA has indicated the following

During the NAFTA negotiations, all three countries expressed the wish to retain their existing rights and obligations under those multilateral environmental and conservation agreements to which they have chosen to belong. The retention of these rights was also assigned a high priority by the Canadian environmental organization in both their written and oral submissions to the government. Canada has preserved these rights in the NAFTA

Canada has thus retained its rights under the Convention on Biological Diversity and the Framework Convention on Climate Change, Convention on the Protection and Natural Heritage as well as its commitments under the UN Conference on Humans and the Environment (UNCHE) and under the UN Conference on the Environment and Development (UNCED) to justify denying the application of Kinder Morgan and will not have to face repercussions under NAFTA.

(iiy) Canadian citizens have a legitimate expectation that they will not be complicit in the US contribution to global insecurity

The granting of this application will directly or indirectly through the fungibility principle contribute to the US military's maintaining US bases, and US military operations.

CONCLUSION:
The application for Kinder Martin must be denied for the above reasons. The public interest will not be served. The control of Public resources such as Natural gas must remain in Canada. The BC public Commission, the BC government, and the Canadian government must act in the interest of the citizens of BC and Canada, and deny this application.


 

Last Updated on Thursday, 01 May 2014 20:28
 

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