A new standard for energy development

A new standard for energy development

By Paul Vogel

Farmers across Canada are becoming increasingly concerned about the introduction and spread of noxious weeds and other pathogens and the potentially disastrous consequences of these biosecurity risks for annual crop production. From clubroot in the West to soya bean cyst nematode in Eastern Canada, government agencies, producer organizations and farmers are all focused on   controlling these biosecurity risks.

In a national biosecurity standard developed for the grains and oilseeds industry, the Canadian Food Inspection Agency (CFIA) has identified various “pests” that have the potential to decimate the multi-billion dollar grains and oilseeds export market and domestic industry. CFIA describes the movement of soil and plant material on equipment moving between fields as a primary biosecurity risk factor in the introduction and spread of these pathogens and recommends inclusion of “equipment cleaning requirements and defined levels of cleanliness in land access agreements.”

Considering risks posed by equipment access not directly related to agricultural activity, CFIA specifically identifies oil and gas well and pipeline development, and comments that “The activities of pipeline or other soil-movement activities may pose a significant risk of moving pests to the farm (via soil and plant debris).”

With respect to such activity by pipeline companies and utilities (electricity, gas, water), the CFIA advises that “Biosecurity risks that are present, but not clearly identified and understood cannot be effectively contained from moving within the farm … An important part of minimizing the spread of pests is early detection and clear identification of the problem.”

The Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA), the Manitoba Pipeline Landowners Association (MPLA) and the Saskatchewan Association of Pipeline Landowners (SAPL) have recently developed in conjunction with Enbridge Inc. an innovative, comprehensive Clubroot Biosecurity Agreement.

The agreement will help identify, assess and mitigate clubroot contamination risks related to Enbridge’s proposed Line 3 Replacement Program across Alberta, Saskatchewan and Manitoba, along with Enbridge’s future mainline corridor pipeline maintenance activities.

The soil-testing and equipment-cleaning protocol prescribed under this agreement applies to all agricultural lands affected by Enbridge’s operations and will be reviewed and updated by agreement of the parties at five-year intervals

It requires clubroot risk identification on each property prior to equipment entry and specifies cleaning and disinfection measures corresponding to identified clubroot risk. The protocol is subject to third-party independent audit to ensure its implementation and, in the event of default, provides for additional testing and a process for dispute resolution.

In connection with proposed new Line 3 construction, clubroot risk is determined through intensive soil testing at primary and auxiliary agricultural and Enbridge right-of-way access points, and along the length of both existing and new right-of-way.

Soil sampling is in a 50-metre W pattern with about 52 sample points per quarter-section on cultivated lands. Soil sampling test results are deemed valid for a period of 18 months, with provision for additional sampling thereafter if necessary.

Depending upon the location and number of clubroot “hits,” each property is then classified as high-, moderate- or low-risk.  Before leaving a high-risk property, equipment is to be “fine cleaned” (pressure wash, steam and disinfect) at a station erected at the property boundary for this purpose.

Alternatively, if the adjacent property is also high-risk, the equipment will be mechanically cleaned with compressed air and disinfected. Where the adjacent properties are owned by the same landowner, the landowner will have the option of locating the mechanical cleaning station adjacent to the clubroot “hit” to prevent spread of clubroot on the property.

Before leaving moderate-risk properties, equipment will similarly be mechanically cleaned at the property boundary. Low-risk properties have no additional cleaning requirements beyond rough cleaning (scraping and brushing).

These mitigation measures apply to all equipment where construction proceeds in non-frozen conditions. In frozen conditions, they apply to earth-moving equipment, with non-earth-moving equipment requiring rough cleaning at the property boundary.

In connection with Enbridge’s future mainline corridor maintenance activities, prescribed soil testing and mitigation measures similarly apply to all agricultural lands. Again, intensive soil testing will be undertaken at both on- and off-easement access points, along the access route and at the dig site.

Soil test results are deemed valid for a period of 12 months (unless there is a material change in the access or dig site location). While mitigation measures are the same as for Line 3 construction on high-, moderate- and low-risk properties, fine and mechanical cleaning may be conducted at a central location, provided the equipment is rough cleaned and all reasonable efforts are made to remove soil residue before transport.

An independent third-party testing auditor and construction monitor are to ensure proper implementation of the soil testing and mitigation protocol during Line 3 construction. Similarly, an independent third-party construction auditor is to ensure proper implementation of soil testing and mitigation requirements on future integrity digs.

In the event of default, Enbridge and landowner representatives are to agree on corrective action, which may include additional soil sampling. In the event of dispute, issues may be referred to a committee including landowner representatives or mediation for resolution.

The CAEPLA/MPLA/SAPL-Enbridge agreement establishes a new standard for the identification and mitigation of clubroot biosecurity risks. For landowners concerned about the introduction and spread of pathogens to their property as a result of pipeline and hydro transmission development, it provides a useful precedent to assist them in implementing CFIA national standard requirements to control biosecurity risks.

— Paul G. Vogel is a partner in the London, Ont., law firm of Cohen Highley LLP. He practises in the area of commercial litigation and environmental law.

Published in PIPELINE OBSERVER Fall 2015