Unloading in the evening

Unloading in the evening

Tuesday, November 30, 2010

Dawn Gateway conducts open season for proposed pipeline

Dawn Gateway Pipeline Limited Partnership and Dawn Gateway Pipeline, LLC (collectively “Dawn Gateway”) is conducting a binding open season for firm transportation between MichCon’s Belle River facility and Union Gas’ Dawn Hub (“Dawn”). At least 80,000 Dth/d is available for a minimum term of 7 years.  Dawn Gateway first announced its international pipeline project in September 2008, and sought to have the pipeline regulated by the federal National Energy Board (NEB).  As a result of interventions before the Ontario Energy Board (OEB) by consumer groups and directly affected landowners, it was determined that the Dawn Gateway pipeline will fall within provincial jurisdiction.

The initial open season resulted in the sale of approximately 80% of the available capacity. In March 2010, Dawn Gateway received all required OEB approvals for the Canadian portion of the pipeline. Shortly thereafter, Dawn Gateway was approached by the anchor Shippers requesting a delay of the in-service date, delaying the construction of the pipeline.

Read more about the open season at: Dawn Gateway Open Season.

Tuesday, November 23, 2010

Burford, Ontario farmer denied permission to exceed quota to make up for past undermarketing

Victor Osztrovic farms in the Burford area. The farm is a mixed cash and specialty crop operation (including tobacco) and since 2002 Osztrovic has been a chicken producer holding production and marketing quota of 66,841 kilograms (kgs.) in each quota period. The quota is issued to him by the provincial regulator, Chicken Farmers of Ontario (CFO).

Early in 2009, Osztrovic experienced higher than usual bird mortality and as a result, he ended that quota period marketing 12,783 kgs. below his quota of 66,841 kgs.  The chicken industry describes the marketing result Osztrovic experienced as "undermarketing".  Undermarketing is significant to chicken producers because in the usual course of business they cannot make up the lost opportunity represented by that 12,783 kgs. due to the operation of the quota system.  As an example, in the usual course of business Osztrovic could not simply increase his production in a future quota period by the lost 12,783 kgs. since doing so would put him over his quota and expose him to penalty levies on his excess production and a corresponding quota reduction.

However, CFO has enacted Quota Policy 170-2005 that addresses undermarketing.  Section 2.22 of that Policy permits an undermarketed producer like Osztrovic to re-grow up to 10% of his quota allocation, or 6,684 kgs., spread over two future quota periods.  The Policy operates to "exempt" that 10% production "re-grown" from the otherwise strict operation of the quota, which would entail penalty levies and a quota reduction.

Osztrovic, however, wanted the opportunity to re-grow all 12,783 kgs. that he lost.  He applied to CFO seeking relief above and beyond the 10% allowed in section 2.22 of the Policy.   CFO denied Osztrovic's requested policy relief and he then appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under section 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act (MAFRAA).

In denying his appeal, the Tribunal said the following:
In the circumstances and facts of this case, the Tribunal declines to grant Victor the requested relief.
CFO developed the undermarketing policy as a "fault free" entitlement. Producers can access the 10% re-grow entitlement if they undermarket for any reason [emphasis added]. The evidence is clear that CFO developed that policy to address undermarketing arising from weather conditions, among other factors. However, the policy contains no threshold criteria. Producers who undermarket due to laziness or negligence or poor chick quality or bad feed or mechanical failures or weather conditions can all access the undermarketing policy and re-grow up to 10% of their quota.

In a quota based regulatory system, exemptions are the exception rather than the norm. In the case of chicken quotas, the CFO has created a standing exemption arising from undermarketing through its Quota Policy 170-2005, section 2.22. That Policy allows producers who undermarket to re-grow the lost kilograms to a maximum of 10% of quota over two future quota periods.

If everything that happened to cause undermarketing gave rise to an exception, the quota policy would become meaningless and that would undermine the regulatory regime. That is even more so where there is a standing exemption as in section 2.22 of the Quota Policy.

Therefore, the Tribunal concludes that to obtain relief above and beyond the undermarketing Policy, Victor must satisfy us, on a balance of probabilities, that something truly unique and exceptional occurred to cause the undermarketing.

Probably more than any other businesses, farmers are particularly at the mercy of the weather. However, weather conditions, even extreme weather conditions such as Victor experienced, are not unique and exceptional in Ontario.

The Tribunal is not satisfied that there was anything truly unique and exceptional about the weather event that resulted in the barn conditions that caused Victor's crop loss.
Read the rest of the decision at: Victor Osztrovic vs Chicken Farmers of Ontario (CFO).

Monday, November 22, 2010

County in Alberta calls for minimum 2 metres depth of cover over federally regulated pipelines

In a letter of comment filed with the National Energy Board (NEB), the County of Strathcona said the following about proposed crossing permission requirements for agricultural landowners and minimum depth of cover over pipelines:
Strathcona County and the Strathcona County Energy Exploration Committee (a Committee of Council) has the following comments regarding the draft Guidance for Safe Crossings of NEB-Regulated Pipelines Using Agricultural Vehicles and Mobile Equipment:

Fundamentally; the pipeline industry should be held to task to provide the landowner with an agreement to "farm" his land prior to building the pipe; putting the owness on the landowner to request a crossing agreement from the company once the pipe is installed is not a process that many farmers would be aware of. However we are cognizant of the fact that "farming" practices are ever changing and Strathcona County does not condone putting farmers at risk. In this regard we support the draft as it applies to existing pipelines.
Moving forward we propose the consideration of a 2 (two) meter depth cover for future pipeline installations to alleviate the need for many of the safety and integrity concerns currently expressed by the agricultural community and industry. While there will still be a need for special considerations and communication between the parties this would allow for both to conduct their business with minimal crossing issues. We realize there could be an economic impact with this action but suggest that safety and reduction of future conflict may assist in offsetting that cost.

Strathcona County is a mixture of urban and rural land uses with approximately 250,485 acres of farmed land and a total of 771 farms. [emphasis added]

Wednesday, November 17, 2010

Trucking company fined for failure to clean up diesel spill due to frost

November 8, 2010


KENORA, ON – On October 14, 2010, Day & Ross Inc. pleaded guilty to one violation under the Environmental Protection Act for failing to remove spilled diesel fuel from an accident site.

The Court heard that on April 1, 2009, a tractor-trailer driven by an independent operator on behalf of the company left the roadway of Highway #17 in poor road conditions due to weather. The accident occurred approximately 30 kilometers east of Kenora. As a result, the fuel tanks ruptured and an estimated 170 litres of diesel fuel escaped into the south ditch adjacent to the highway. On April 2, 2009, the Ministry of Transportation reported the accident to the Ministry of the Environment, who attended the site. On April 3, 2009, ministry staff returned to the accident site with an environmental consulting firm retained by the company to assess and remediate the site. On April 8, 2009, a Provincial Officer Order was issued to the company ordering the it to remove the spilled diesel fuel from the accident site, handle the recovered fuel and other waste in accordance with provincial legislation and restore the site to its original condition by April 21, 2009. Due to environmental conditions, namely the presence of frost, the company did not comply with the order to clean up the spill until approximately 40 days after the date required by the order.

The company was fined following an investigation by the ministry’s Investigations and Enforcement Branch.

The company was fined $10,000 plus a victim fine surcharge and was given 90 days to pay the fine.

Tuesday, November 16, 2010

Fines levied against Kingston area lawn care companies for herbicide use

November 8, 2010


KINGSTON & BELLEVILLE – On October 14, 2010, Tymack Incorporated operating as Nutri-Lawn Kingston and Robert Baxby were each convicted of four violations under the Pesticides Act for using a prohibited Class 9 Pesticide for cosmetic use and failing to post signs as per regulations.

The Court heard that Mr. Baxby is the manager and sole director of Tymack Incorporated operating as Nutri-Lawn Kingston, who has been providing lawn care services in Belleville and Kingston. On April 24, 2009, Mr. Baxby met with ministry staff in Kingston to discuss the new cosmetic pesticide ban, and the requirements of the ban were explained to him. Mr. Baxby was strongly encouraged to comply with the new ban. On August 13, 2009, the ministry received a complaint that company trucks and employees were applying chemicals to control weeds at a site in Kingston, leaving a strong odour. Ministry staff attended the site and confirmed that the company had sprayed that morning. There were also no signs posted. On August 19, 2009, an examination of the turf areas at the site revealed vegetation with abnormal growth patterns, characteristic of exposure to Class 9 Pesticides.

On October 8, 2009, the ministry received several complaints related company employees using a mixture in the spray tank at a site in Belleville. Again, no signs were posted and the results of samples taken from the tank confirmed high concentrations in the Class 9 category and therefore, a banned substance.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  The company was fined at total of $10,486 on two charges, plus a victim fine surcharge and given 12 months to pay the fines.

October 15, 2010


KINGSTON – On September 30, 2010, Kevin Cross was fined $12,000 for using, causing, or permitting the use in, on, or over land of a pesticide, contrary to amendments made under the Pesticides Act.

The Court heard that Mr. Cross owns a lawn care and pest control company in Kingston. From May to August 2009, the ministry had received reports that the company had been applying banned herbicides to three residential properties.

Mr. Cross was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  Mr. Cross was fined $12,000 plus a victim fine surcharge and was given one year to pay the fine.

Monday, November 15, 2010

Appeal Tribunal "disturbed" by actions of municipality in performing its Drainage Act duties

In allowing an appeal by Rein Minnema of Glencoe, Ontario against a report of a Drainage Engineer for the Municipality of Southwest Middlesex, the Agricultural, Food and Rural Affairs Tribunal criticized the municipality for its actions leading to the creation of the report.  The report concerned the Miller Drainage Works 1969 and Minnema asked that it be amended to provided for enclosing the open channel of the drain on his property.  The enclosure was actually part of the original report of the Drainage Engineer in 2006, but the Municipality ignored that report and instructed the Engineer to go in a different direction.  In the view of the Appeal Tribunal, this instruction exceeded the jurisdiction of the Municipality:
The Tribunal is disturbed by the actions of the Municipality in performing its duties under the Act, beginning with Council's consideration of the Engineer's preliminary report at their meeting of March 15, 2006. The Engineer's preliminary report provided three options for the enclosure of the drain in response to the original request by Mr. Minnema to have the drain enclosed. However, after hearing complaints from upstream landowners, Council chose to ignore the Engineer's recommendations contained in his preliminary report and restated in his letter attached to the municipal staff report. Instead, they opted to proceed in a completely different direction by instructing the Engineer to prepare a report based on installing an access culvert and erosion protection. It was this Council action that appears to have initiated a nearly 5 year litany of events which led to the preparation and consideration of three versions of final reports, with the recommendations in each successive report becoming progressively further removed from Mr. Minnema's original request for an enclosure and the recommendations of the Engineer in his preliminary report. During the process, Council provided specific instructions to the Engineer to modify his recommendations and design parameters, including changing the report from a drain enclosure to a culvert, deleting erosion protection and the upsizing of the access culvert from a 1 in 2 year to a 1 in 5 year design standard.
The Tribunal finds that Council for the Municipality exceeded their jurisdiction under the Act by exerting undue influence on the Engineer which prejudiced the Engineer's independent judgment.

The Tribunal is also disturbed by the Engineer's passivity in complying with Council instructions to make significant changes to his recommendations and design parameters. In his letter to the Municipality of January 14, 2007, which was attached to the staff report to Council dated February 11, 2010, the Engineer clearly stated that the best solution to address problems, including surface water and erosion, was the installation of a tile drain generally following the existing channel with outlets for surface water. During the hearing, the Engineer testified that he is still of the opinion that the erosion issues at the outlet of the existing tiles need to be addressed, yet this work is not included in the current Report. He also testified that the design standard for an agricultural access culvert is normally a 1 in 2 year storm, yet the culvert in the Report has been upsized to a 1 in 5 year storm. Furthermore, he testified that he still stands by his recommendation to enclose the drain as described in his preliminary report, yet the current Report has no such recommendation. He said that he made the changes to the reports in order to comply with the Council instructions.

The Tribunal finds that the Engineer allowed himself to be unduly influenced by Council and failed to exercise independent judgment in preparing his final reports, including the current Report.

In view of the above, the Tribunal finds that the Engineer's Report under consideration does not represent a "true report" as referenced under Section 11 of the Act.
Read the entire decision at: Miller Drainage Works 1969.

Saturday, November 13, 2010

ProPublica reports on severe corrosion problems in BP Alaska pipelines

An internal British Petroleum (BP) report shows that, as of October 1, 2010, at least 148 BP oil, gas and waste pipelines in Alaska received an "F-rank" from the company.  ProPublica.org, which obtained a copy of the report, explains the "F-rank":
According to BP oilworkers, that means inspections have determined that more than 80 percent of the pipe wall is corroded and could rupture. Most of those lines carry toxic or flammable substances. Many of the metal walls of the F-ranked pipes are worn to within a few thousandths of an inch of bursting, according to the document, risking an explosion or spills.
Read the rest of the article at: ProPublica.org.

Tuesday, November 9, 2010

Express Pipeline abruptly withdraws its application to abandon leaky oil pipeline in place

In a previous post, I reported on an application by Express Pipeline (Kinder Morgan Canada) to abandon a leaky oil pipeline in place.  Express intended to ask the NEB to allow it to build a new pipeline adjacent to the old one.  Yesterday, Express wrote to the NEB to withdraw its abandonment application without giving any reasons: November 8, 2010 Withdrawal Letter

Monday, November 8, 2010

Appeal Tribunal dismisses part of Ontario Chicken Farmer's appeal of CFO policies

Part of an appeal launched by Henry Bos against a decision of the Chicken Farmers of Ontario (CFO) has been dismissed by the Agriculture, Food and Rural Affairs Tribunal on a preliminary motion by the CFO.  The Bos appeal is described in a previous post on this blog

The CFO based its preliminary challenge of the appeal of 2005 policies on three grounds:
1.The appellant has known of the 2005 policies for more than a year and the Tribunal should therefore exercise its discretion to refuse to hear the appeal under subsection 16(4) of the MAFRAA.
2.The appellant is not aggrieved by the 2005 policies within the meaning of subsection 16(2) of the MAFRAA.
3.The appeal of the 2005 policies is vexatious within the meaning of subsection 16(4)(b) of the MAFRAA.
In allowing the motion, the Tribunal concluded that the following factors combined to militate against permitting Mr. Bos to continue with this appeal of the 2005 policies:
  • the fact that CFO developed the 2005 policies in a negotiated process directed by the Commission and involving the regulator representing producers (CFO) and the processors (OIPP and AOCP)
  • producers and processors alike have ordered their business affairs based on the 2005 policies and have operated under that system for the past four years
  • the fact that at least four years have passed since CFO enacted the 2005 policies
  • the fact that Mr. Bos did not appeal the 2005 policies before the introduction of the 2009 policies suggests that his real complaint lies with the 2009 policies and not the 2005 policies
  • the prospect of a fundamental change in the processor allocation system after sixteen years of some form of assurance of supply
Read the decision at: Henry Bos v. Chicken Farmers of Ontario.

Friday, November 5, 2010

Ontario - Birds and Bird Habitats: Updated Guidelines for Wind Power Projects

The Green Energy Act 2009 (GEA) places a priority on expanding Ontario’s use of clean and renewable sources of energy, including wind power. A key element of the GEA is a new integrated approval process that establishes clear up-front requirements for most renewable energy projects. These requirements are outlined under the Ministry of the Environment’s (MOE) Renewable Energy Approval (REA) regulation (O.Reg. 359/09) and the Ministry of Natural Resource’s (MNR) Approval and Permitting Requirements Document (APRD).

The REA regulation describes the requirements for wind power projects related to significant natural features, including significant wildlife habitat. Birds are an important part of Ontario’s biodiversity. To provide further clarity and certainty on the renewable energy approval requirements for wind power, MNR has prepared updated Guidelines for application to both Crown and private lands.

The Guidelines address the new requirements of the REA regulation, incorporate new North American science and information and provide guidance on identifying and addressing potential negative effects on birds and bird habitats during the planning, construction and operation of wind power projects by:
focusing pre-construction monitoring on identification and evaluation of bird habitats to consider potential impacts of wind power development on birds and bird habitats;
identifying methods for evaluating the significance of candidate bird significant wildlife habitat and adopting a habitat setback approach, with assessment and monitoring based on proximity to significant habitat;

establishing of post construction bird mortality monitoring requirements for all onshore wind power projects, via an environmental effects monitoring plan; and

establishing a requirement for an additional two years of scoped monitoring when a threshold of bird mortality exceeds:

• 18 birds/ turbine/year;

• 0.2 raptors/turbine/year (all raptors);

• 0.1 raptors/turbine/year (raptors of provincial conservation concern); or

• 2 raptors/windpower project (<10 turbines).
This proposal has been posted for a 45 day public review and comment period starting November 05, 2010. If you have any questions, or would like to submit your comments, please do so by December 20, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to December 20, 2010 will be considered as part of the decision-making process by the Ministry of Natural Resources if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0112.

All comments on this proposal must be directed to:

Kathleen Pitt
Program Officer
Ministry of Natural Resources
Policy Division
Renewable Energy Program
300 Water Street
Floor 5
Robinson Place South Tower
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5321
Fax: (705) 755-1206

ABlawg.ca: "Alberta makes significant progress in establishing a legal and regulatory regime to accommodate carbon capture and storage (CCS) projects"

Professor Nigel Bankes of the University of Calgary has posted an article on ABlawg.ca about legislative changes in Alberta to allow for the development of carbon capture and storage projects.  These changes include a provision vesting pore space (into which carbon would be injected) in the Crown and provisions designed to move long term liability from operators to the Crown.

Read the article at: Carbon Capture and Storage Projects.

Wednesday, November 3, 2010

Red Lily Wind Farm - Court Decision denying injunction

In a previous post, I wrote about a Saskatchewan landowner who may face a costs order as a result of a failed application for an injunction to prevent the Red Lily Wind Farm project from moving forward.  The decision denying the injunction is now available to read at: McKinnon v. Martin no. 122 (Rural Municipality)

The Court rejected outright the evidence of the expert witness put forward by those seeking the injunction:
If Dr. Nissenbaum could be considered an expert to provide opinion evidence on the issue surrounding the granting of the injunction, there are two further reasons to reject his evidence. The first is that he has assumed the role of advocate. A review of his affidavit No. 2 especially shows that he does not take an objective approach to the issues at hand. He passionately believes in the harmful health effects of wind turbines from his own survey on the Mars Hill project and has made that the basis for his foray into an area that he has little real knowledge of. It is clear from the content and tone of his second affidavit that he has no objectivity in respect of the issues. Secondly, in addition to the leaps of logic that were contained in para. 17 of both affidavits, he makes bold, unsupported statements on issues critical to the injunction.
Having rejected the evidence of the plaintiff's expert in favour of the project proponent's expert, the Court found that the test for an injunction had not been satisfied. 

Tuesday, November 2, 2010

"Lawyers called to help in green energy battle": Law Times

Read the article by Daryl-Lynn Carlson on green energy development and Ontario landowners at: Law Times News.  I was one of the lawyers interviewed for the article.

Monday, November 1, 2010

Express Pipeline applies to abandon leaky oil pipeline in place, then build new line next to it

Kinder Morgan Canada ("KMC"), on behalf of Express Pipeline Limited Partnership ("Express"), has applied to the NEB for permission to abandon in place a leaky oil pipeline in Alberta.  KMC says that there have been three leaks in the pipeline to date and that efforts to correct the problems are too costly:
The ongoing cleaning program (pigging) on the Husky lateral is unlikely to effectively mitigate these same sharp deep anomalies because the brushes would not be expected to penetrate to the bottom of these pits to arrest the active corrosion. Since 2007, Express Pipeline has completed numerous digs and repairs on the 1.3 kilometer pipeline and spent in excess of $4.3MM in repairs and inspections. It is evident that the Husky lateral’s internal corrosion problem cannot be effectively mitigated by combining regular cleaning with periodic ILI, and that this line should remain out of service until a more effective program is implemented or the line is replaced.
The application can be viewed at: Express Pipeline Abandonment.