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Port development on Roberts Bank in the Fraser River Estuary, British Columbia

Petition

5 September 2006

Attention Office of the Auditor General 

Further to previous emails, I am submitting this petition on an environmental matter and under Section 22 of the Auditor General's Act—concerning the unacceptable manner in which the Proposal to extend the Deltaport Container Facility at Roberts Bank is being handled.

There are two aspects to this petition.

1. The actions of the Canadian Environmental Assessment Agency in respect of the handling of the public comment process on the Deltaport Third Berth Application.

On July 19 the CEAA issued their Comprehensive Study Report (CSR) on this project.

I, other members of the public, and our MP John Cummins all asked for more time to review this CSR.

The reasons for this request were as follows:

• There are over 400 pages in the report and appendices
• This report was released at the height of the summer—when many concerned residents are away on vacation or otherwise occupied with summer activities
• There were 700 issues raised by hundreds of concerned citizens and NGOs during the review stages of this project. Many of these were never properly addressed by the proponents and many others were ducked altogether. These will require extensive time to check against the Comprehensive Study Report
• There are complex environmental and socio economic issues to be addressed and these will require technical expertise that is not readily available and will take time to find
• Following the previous public comment periods, hundreds and hundreds of issues were raised by the public and responded to by the applicant, the Vancouver Port Authority. Many of these issues were not properly answered by the VPA. Others they refused to answer altogether, or passed off to another Government Agency to answer. The expectation was that the CSR would address all of these issues. Therefore until the CSR was published work could not begin on comparing the issues with the details in the CSR.

The CEA waited over a month before responding—and left it until just a few days before the deadline for submissions. No reasons were ever given as to why the extension was not approved. I was forced to submit an incomplete submission on the environmental concerns and issues in respect of the Deltaport Third Berth Project.

This is an abuse of the whole public comment process.

QUESTION 1

The reasons for my request were well documented. What were the reasons for CEA ignoring my and other requests for an extension?

QUESTION 2

Since the deadline for submission has now passed will the CEA now grant an additional 60 days so that this complex project and the Comprehensive Study Report can be properly reviewed?

2. Failure to Follow the Requirements of the Canadian Environmental Assessment Act and to Adhere to the Principles of Sustainable Development

Numerous submissions have demonstrated that if the Deltaport expansion is approved it will cause significant adverse environmental effects that cannot be justified in the circumstances

Within the context of the CEAA:

• there is no need for the Project;
• It has been proven that there will be sufficient port capacity on Canada's West Coast with expansion at other ports, especially Prince Rupert, to accommodate all of the estimated trade expansion out to at least the year 2020
• Total estimated container capacity by 2020 on the west coast is 9.45 million TEUs, without any expansion at Deltaport. The BC Government Ports Strategy estimates a requirement for 5-7 million TEUs.

QUESTION 3

How can the RAs justify the need for this project when the forecast capacity is well in excess of the BC Government forecasted demand?

The Project does not meet CEAA's requirement for sustainable development. Specifically:

(1) It does not protect the health of Canadians;
There are key concerns with air quality. Specifically during construction of the project the proponent admits that it will exceed the Greater Vancouver Regional District standards for Particulate Matter—PM2.5. Furthermore had the cumulative assessment been done properly it also would have shown that PM2.5 pollution would exceed GVRD standards when the project is in operation. PM2.5 is recognized as a serious health threat. The medical profession has stated that there are no safe levels for PM2.5. The BC Lung Association suggests that increases in PM2.5 emissions on the Lower Mainland will result in increased health care costs of over $1 billion.

QUESTION 5

How can the RA's say that there are no adverse air quality impacts when the project will exceed Greater Vancouver Regional District standards for Particulate Matter—PM2.5.—both under construction and in operation? In addition did the RA's consider the increased health costs that will result?

(2) It does not protect ecosystems;
Roberts Bank is one of the most important ecosystems in the whole of North America. Its importance has not been properly recognized in the CSR.

QUESTION 6

Given that key aspects of sustainability are according to Government Guidelines protecting ecosystems and respecting nature and the needs of future generations, how can the RAs justify destroying part of this critically important habitat?

(3) It fails to meet international obligations;
There are a number of transboundary agreements between Canada and the US because of the shared waters in the Georgia Basin and Puget Sound. These initiatives deal with the air shed, water quality, fish habitat and orca protection. These should have been listed in the CSR and explanations should have been provided of how these agreements are being honoured in this process.

QUESTION 7

Have the RA's investigated Canada's transboundary agreements and has agreement been received from the US authorities to proceed?

• the Project is likely to cause significant adverse environmental effects to the fragile Roberts Bank ecosystem, the marine environment in the Georgia Basin, and the environment in general;
• those significant adverse environmental effects will not be mitigated by the measures proposed in the CSR;
• those significant adverse environmental effects cannot be justified in the circumstances.

QUESTION 8

Given the many significant adverse effects that have been documented in public input on the project, (see http://www.eao.gov.bc.ca/epic/output/html/
deploy/epic_project_doc_index_212.html) have the RA's carried out there own independent review of all the issues raised by the public and NGOs? If so how can they now assert that the project will not cause significant adverse effects?

And in terms of the Comprehensive Study Report:

• the CSR contains a faulty analysis of the need for the Project. The CSR in two instances under-estimates port capacity at other ports in BC. First the CSR incorrectly states that the Prince Rupert Container port will have a capacity of 1.5 million TEUs. That is incorrect—the website for the Prince Rupert Container Port (http://www.rupertport.com/container.htm) says the port capacity will be 2 million TEUs. In addition a study by the Boston Consulting Group indicates Prince Rupert has the capacity to expand to 4 million TEUs. Furthermore Fraserport currently has spare capacity of up to 800,000 TEUs because it recently lost the CP Ships container traffic and had to lay off staff as a result.

QUESTION 9

How can the RAs assert that this project is justified when there is already spare capacity well in excess of the planned Deltaport expansion, with significant spare capacity coming on stream at Prince Rupert?

• the CSR does not consider a substantial amount of credible scientific and environmental information that shows that the Project is likely to cause significant adverse environmental effects to the fragile Roberts Bank ecosystem and the marine environment in general, and fails to consider the cumulative environmental effects of the Project;

QUESTION 10

Since the project proponent failed to carry out a proper cumulative effects assessment, to include prior port developments as well as the planned Terminal 2, in addition to related projects such as the South Fraser Perimeter Road, why did the CRS and the RAs fail to address these effects?

• the CSR does not adequately address overwhelming public concern about the Project;

QUESTION 11

How and when do the RA's propose to address the many many public concerns, since the CSR fails to do so?

• the CSR contains no effective follow-up program that will address environmental damage attributable to the ecosystem;
• the CSR does not address the issue of Canada's obligation under the Transboundary EIA Convention to notify the United States of the Project, which is likely to cause a significant adverse effect on the endangered Southern Resident Killer Whales;

QUESTION 12

Given that the Southern Resident Killer Whales are classified as a species at risk and that Canada has special responsibilities to notify the USA, why did the CSR and the RA's fail to address this and when will the USA be notified?

For all of these reasons it is apparent that the CSR does not meet the requirements of the CEAA.

QUESTION 13

In the light of all the evidence that has been submitted, plus the submitted evidence that the CSR does not meet the requirements of the CEAA, how can the Responsible Authorities state that the project is not likely to cause significant adverse effects?

QUESTION 14

Will the Minster of Environment suspend the review process and decision on the Comprehensive Study Report and put the whole issue out to an independent panel for review, coupled with a full public hearing?

A signed original of this email is in the mail to your attention.

Yours truly,

[Original signed by Roger Emsley]

Roger Emsley
Delta BC
604 946 7250 (phone and fax)
604 723 1208
email emsley@axion.net

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Minister's Response: Environment Canada

15 January 2007

Mr. Roger Emsley
2920 – 64th Street
Delta BC
V4L 2N7

Dear Mr. Emsley:

I am writing to provide Environment Canada's and the Canadian Environmental Assessment Agency's (the Agency) joint response to your Environmental Petition No. 176 to the Commissioner of the Environment and Sustainable Development, concerning the Deltaport Third Berth Project at Roberts Bank. Environment Canada received a copy of your Environmental Petition on September 19, 2006.

Please find enclosed Environment Canada's and the Agency's response to your petition.

I appreciate your interest in this matter, and I hope this response is helpful.

Sincerely,

[Original signed by John Baird, Minister of the Environment]

John Baird, P.C., M.P.

Environment Canada and the Canadian Environmental Assessment Agency
Response to Environmental Petition No. 176 Pursuant to Section 22
of the Auditor General Act on the environmental assessment of the
Deltaport Third Berth Project at Roberts Bank

QUESTION 1

What were the reasons for CEA ignoring my and other requests for an extension?

Response

The requests for an extension were not ignored. The public comment period on the Comprehensive Study Report (CSR) was conducted over 45 days rather than the standard 30-day period to address these concerns.

QUESTION 2

Since the deadline for submission has now passed will the CEA now grant an additional 60 days so that this complex project and the Comprehensive Study Report can be properly reviewed?

Response

The public comment period on the CSR has been completed and the Agency is not in a position to extend it.

QUESTION 3

How can the RAs justify the need for this project when the forecast capacity is well in excess of the BC Government forecasted demand?

Response

Project need was identified through an examination of Port of Vancouver forecast container growth and existing capacity and was considered in the CSR. Independent consultants using standard methodology conducted container capacity forecasts. The CSR also considered the capacity of Prince Rupert port expansion.

The Responsible Authorities (RAs) concluded that based on the Proponent's projected container forecasts, the Canadian container industry will require all of the terminal initiatives proposed by the Vancouver, Fraser River, and Prince Rupert ports. This conclusion is supported by recent information published by the Province in the BC Ports Competitive Profile (2005) for development of the BC Ports Strategy.

QUESTION 4

Inexistent

QUESTION 5

How can the RA's say that there are no adverse air quality impacts when the project will exceed Greater Vancouver Regional District standards for Particulate Matter—PM2.5.—both under construction and in operation? In addition did the RA's consider the increased health costs that will result?

Response

The RAs are satisfied that the Proponent has met the provisions for Continuous Improvement under the Canada-wide Standards for Particulate Matter and Ozone by engaging in best practices to mitigate air emissions from the proposed project.

The Proponent assessed the relative contribution of greenhouse gas emissions for the project and compared them to total greenhouse gas emissions for the regional study area, British Columbia and Canada, and found the project's contribution to be insignificant.

Provided the Proponent implements the mitigation measures identified in the CSR, the RAs are satisfied that the Deltaport Third Berth Project will not likely result in significant adverse environmental effects on air quality and human health in the study area.

QUESTION 6

Given that key aspects of sustainability are according to Government Guidelines protecting ecosystems and respecting nature and the needs of future generations, how can the RAs justify destroying part of this critically important habitat?

Response

The Canadian Environmental Assessment Act defines "sustainable development" as development that meets the needs of the present, without compromising the ability of future generations to meet their own needs. This was the definition used for the development of the CSR.

While sustainable development goals are not a specific requirement of the Canadian Environmental Assessment Act, the CSR does consider the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future.

Based on the information summarized in the CSR and provided that the Vancouver Port Authority implements the actions described in the Owner's Commitments and Assurances as listed in Appendix A of the CSR, the RAs are satisfied that the project is not likely to cause any significant adverse effects on the capacity of renewable resources to meet the needs of the present and those of the future.

Maintaining the Roberts Bank ecosystem for supporting migratory birds and species at risk is a regional priority for Environment Canada. The Vancouver Port Authority's engineering studies concluded that there is no significant risk to the Roberts Bank ecosystem. Environment Canada is of the view that, while the risk of their occurrence is low, the consequences of accelerated erosion, eutrophication or other effects could be unacceptable. To further mitigate this risk, at the request of Environment Canada, the Vancouver Port Authority has developed an Adaptive Management Strategy to identify and remediate any unforeseen negative ecosystem or environmental trends before they become significant adverse environmental effects.

QUESTION 7

Have the RA's investigated Canada's transboundary agreements and has agreement been received from the US authorities to proceed?

Response

As part of the harmonized environmental assessment process, the Canadian Environmental Assessment Agency and the provincial Environmental Assessment Office notified their U.S. counterparts of the proposed project and the harmonized environmental assessment. On June 5, 2003, U.S. agencies were notified about the project and invited to participate in the harmonized review process.

QUESTION 8

Given the many significant adverse effects that have been documented in public input on the project, (see http://www.eao.gov.bc.ca/epic/
output/html/deploy/epic_project_doc_index_212.html) have the RA's carried out there own independent review of all the issues raised by the public and NGOs? If so how can they now assert that the project will not cause significant adverse effects?

Response

The harmonized environmental assessment process involved extensive dialogue between the Proponent, RAs, First Nations, and other working group members. The Proponent made project design changes, developed additional mitigation measures, and prepared an Adaptive Management Strategy for monitoring and mitigation. Any potential residual effects were considered as part of the cumulative effects assessment.

All public comments received as part of the harmonized federal/provincial review have been considered and addressed. A summary of the issues raised, as well as the responses, was provided in the CSR.

All potential environmental impacts and relevant mitigation measures are included in the CSR. All issues have been considered during the harmonized federal/provincial EA review and the issues relevant to the federal assessment are summarized in the CSR. Based on the information outlined in the CSR, the RAs are satisfied the Deltaport Third Berth Project is not likely to cause significant adverse environmental effects.

QUESTION 9

How can the RAs assert that this project is justified when there is already spare capacity well in excess of the planned Deltaport expansion, with significant spare capacity coming on stream at Prince Rupert?

Response

Please refer to the response provided to question no. 3.

QUESTION 10

Since the project proponent failed to carry out a proper cumulative effects assessment, to include prior port developments as well as the planned Terminal 2, in addition to related projects such as the South Fraser Perimeter Road, why did the CRS and the RAs fail to address these effects?

Response

An appropriate cumulative effects assessment was conducted and to the degree that information was available, both the South Fraser Perimeter Road and Terminal 2 were included in the cumulative effects assessment. Past port developments, Tsawwassen Ferry Terminal, Terminal 2 and South Fraser Perimeter Road were all considered in the CSR. Provided the Proponent implements the mitigation measures identified in the CSR, the RAs are satisfied that the Deltaport Third Berth Project will not likely result in significant adverse cumulative effects.

QUESTION 11

How and when do the RA's propose to address the many public concerns, since the CSR fails to do so?

Response

The requirements of the Canadian Environmental Assessment Act regarding public participation have been met during the ongoing review of the Deltaport Third Berth Expansion Project. All public comments received as part of the harmonized federal/provincial review have been considered and addressed. A summary of the issues raised, as well as the responses, was provided in the CSR. The CSR contained the information used by the RAs in determining significance of effects under CEAA.

QUESTION 12

Given that the Southern Resident Killer Whales are classified as a species at risk and that Canada has special responsibilities to notify the USA, why did the CSR and the RA's fail to address this and when will the USA be notified?

Response

On June 5, 2003, United States Agencies were notified about the project and the environmental assessment.

QUESTION 13

In the light of all the evidence that has been submitted, plus the submitted evidence that the CSR does not meet the requirements of the CEAA, how can the Responsible Authorities state that the project is not likely to cause significant adverse effects?

Response

Through the harmonized process, the requirements of the Canadian Environmental Assessment Act have been adhered to during the ongoing review of the Deltaport Third Berth Expansion Project. Provided the Proponent implements the mitigation measures identified in the CSR, the RAs are satisfied that the Deltaport Third Berth Project will not likely result in significant adverse environmental effects, including cumulative effects.

QUESTION 14

Will the Minster of Environment suspend the review process and decision on the Comprehensive Study Report and put the whole issue out to an independent panel for review, coupled with a full public hearing?

Response

The RAs conducted public consultation with respect to: the proposed scope of the Project for the purposes of the environmental assessment; the factors proposed to be considered in its assessment; the proposed scope of those factors; and, the ability of the comprehensive study to address issues relating to the Project.

The Minister of the Environment took into account the report provided by the RAs and on December 17, 2004, the Minister referred the project back to the RAs instructing them to continue the review as a comprehensive study. The Canadian Environmental Assessment Act does not give the Minister an opportunity to reverse that decision at a later date.

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Minister's Response: Fisheries and Oceans Canada

9 January 2007

Mr. Roger Emsley
2920 – 64th Street
Delta, British Columbia
V4L 2N7

Dear Mr. Emsley:

I am writing in response to your Environmental Petition No. 176 to the Commissioner on the Environment and Sustainable Development (the Commissioner), concerning the environmental assessment of the Deltaport Third Berth Expansion Project at Roberts Bank.

The Commissioner referred the petition to me and to my colleague, the Minister of the Environment, who will provide responses on matters within Environment Canada's areas of responsibility. In the attached document, I have provided responses on matters within the responsibility of Fisheries and Oceans Canada (DFO), specifically questions 3, 6, 7, 8, 9, 10, 11, 12, and 13.

I thank you for your interest in the environment.

Sincerely,

[Original signed by Loyala Hearn, Minister of Fisheries and Oceans]

Loyola Hearn, P.C., M.P.

RESPONSE (88919)—Petition under section 22 of the Auditor General Act; Roger Emsley; Environmental Petition No. 176; re: the environmental assessment of the Deltaport Third Berth Project at Roberts Bank

QUESTION 3

How can the RAs justify the need for this project when the forecast capacity is well in excess of the BC Government forecasted demand?

The project need was identified through an examination of the Port of Vancouver forecast container growth and existing capacity and was considered in the Comprehensive Study Report. Independent consultants using standard methodology conducted container capacity forecasts. Based on the proponent's projected container forecasts, it was predicted that the Canadian container industry will require all of the terminal initiatives proposed by the Vancouver, Fraser River, and Prince Rupert ports. This conclusion is supported by recent information published by the Province of British Columbia (BC) in the BC Ports Competitive Profile (2005) for development of the BC Ports Strategy.

The Responsible Authorities considered the need for the project as per the Canadian Environmental Assessment Act. Consistent with the Canadian Environmental Assessment Agency's Operational Policy Statement OPS-EPO/2-1998, the need for the project was established from the perspective of the project proponent and it provided context for the consideration of alternatives. The Comprehensive Study Report included a consideration of the alternatives to the project and factored in the capacity of Prince Rupert port expansion.

QUESTION 6

Given that key aspects of sustainability are according to Government Guidelines protecting ecosystems and respecting nature and the needs of future generations, how can the RAs justify destroying part of this critically important habitat?

The Canadian Environmental Assessment Act defines "sustainable development" as development that meets the needs of the present, without compromising the ability of future generations to meet their own needs. This was the definition used for the development of the Comprehensive Study Report.

The Responsible Authorities considered the capacity of renewable resources as referenced in the Comprehensive Study Report, in terms of the biophysical components that are likely to be significantly affected by the project to meet the needs of the present and those of the future.

Based on the information summarized in the Comprehensive Study Report and provided that the Vancouver Port Authority implements the actions described in the Owner's Commitments and Assurances as listed in Appendix A of the Comprehensive Study Report, the Responsible Authorities are satisfied that the project is not likely to cause any significant adverse effects on the capacity of renewable resources (biophysical) to meet the needs of the present and those of the future.

QUESTION 7

Have the RA's investigated Canada's transboundary agreements and has agreement been received from the US authorities to proceed?

As part of the harmonized environmental assessment process and consistent with transboundary agreements, the Provincial Environmental Assessment Office notified the relevant United States agencies on June 5, 2003, of the proposed project and invited the agencies to participate in the harmonized environmental assessment process. No comments were received from the United States agencies.

QUESTION 8

Given the many significant adverse effects that have been documented in public input on the project, (see http://www.eao.gov.bc.ca/epic/output/html/deploy/epic_project_doc_index_212.html)
have the RA's carried out their own independent review of all the issues raised by the public and NGOs? If so how can they now assert that the project will not cause significant adverse effects?

The harmonized environmental assessment process involved extensive dialogue between the proponent, Responsible Authorities, First Nations, and other working group members. The proponent made project design changes, developed additional mitigation measures, revised the fish habitat compensation plan and prepared an Adaptive Management Strategy for monitoring and mitigation. Any potential residual effects were considered as part of the cumulative effects assessment.

All public comments, including those of First Nations, Non-Governmental Organizations and working group members, received as part of the harmonized federal/provincial review process have been considered and the issues appropriate to the federal assessment process are summarized in the Comprehensive Study Report. Pursuant to the Canadian Environmental Assessment Act, all environmental effects were considered in the Comprehensive Study Report. A summary of the issues raised, as well as the responses, was provided in the Comprehensive Study Report. Potential environmental impacts and mitigation measures are included in the Comprehensive Study Report. Based on the information outlined in the Comprehensive Study Report, the Responsible Authorities are satisfied that project is not likely to cause significant adverse environmental effects.

QUESTION 9

How can the RAs assert that this project is justified when there is already spare capacity well in excess of the planned Deltaport expansion, with significant spare capacity coming on stream at Prince Rupert?

See the response to question #3.

QUESTION 10

Since the project proponent failed to carry out a proper cumulative effects assessment, to include prior port developments as well as the planned Terminal 2, in addition to related projects such as the South Fraser Perimeter Road, why did the CSR and the RAs fail to address these effects?

The potential cumulative effects of the South Fraser Perimeter Road and Terminal 2 were assessed during this comprehensive study using the information that was currently available on these projects. Past port developments at Roberts Bank, Tsawwassen Ferry Terminal, Terminal 2 and South Fraser Perimeter Road were all considered in the Comprehensive Study Report. Provided the Proponent implements the mitigation measures identified in the Comprehensive Study Report, the Responsible Authorities are satisfied that Deltaport Third Berth project will not likely result in significant adverse cumulative environmental effects.

QUESTION 11

How and when do the RA's propose to address the many public concerns, since the CSR fails to do so?

The requirements of the Canadian Environmental Assessment Act regarding public participation have been met during the ongoing review of the Deltaport Third Berth Expansion Project. All public comments received as part of the harmonized federal/provincial review and the Comprehensive Study Report public comment period have been considered. A summary of the issues raised, as well as the responses, is provided by study area section in the Comprehensive Study Report. The Comprehensive Study Report contains the information used by the Responsible Authorities in determining significance of effects under the Canadian Environmental Assessment Act. The Responsible Authorities have considered all public comments and have determined that the conclusion reached during the comprehensive study process, that the project is not likely to result in significant adverse environmental effects, remains valid.

QUESTION 12

Given that the Southern Resident Killer Whales are classified as a species at risk and that Canada has special responsibilities to notify the USA, why did the CSR and the RA's fail to address this and when will the USA be notified?

On June 5, 2003, the relevant United States agencies were notified of the proposed project and were invited to participate in the harmonized environmental assessment process.

QUESTION 13

In the light of all the evidence that has been submitted, plus the submitted evidence that the CSR does not meet the requirements of the CEAA, how can the Responsible Authorities state that the project is not likely to cause significant adverse effects?

Through the harmonized Environmental Assessment process and completion of the federal comprehensive study, the requirements of the Canadian Environmental Assessment Act have been adhered to during the ongoing review of the Deltaport Third Berth Expansion Project. Provided the proponent implements the mitigation measures and the follow-up program, the compliance and effects monitoring, the follow-up measures, the Adaptive Management Strategy and the Habitat Compensation Plan identified in the Comprehensive Study Report, the Responsible Authorities are satisfied that the project will not likely result in significant adverse environmental effects.