ARCHIVED — Vol. 146, No. 25 — December 5, 2012

Registration

SOR/2012-238 November 14, 2012

NATIONAL ENERGY BOARD ACT

Regulations Amending the Power Line Crossing Regulations

The National Energy Board, pursuant to subsection 58.28(4) (see footnote a) and paragraphs 58.33(c) (see footnote b) and 112(5)(c) (see footnote c) of the National Energy Board Act (see footnote d), makes the annexed Regulations Amending the Power Line Crossing Regulations.

November 9, 2012

REGULATIONS AMENDING THE POWER LINE CROSSING REGULATIONS

AMENDMENTS

1. The definitions “facility”, “power line” and “utility owner” in section 2 of the Power Line Crossing Regulations (see footnote 1) are repealed.

2. (1) The portion of section 4 of the Regulations before paragraph (a) is replaced by the following:

4. For the purposes of paragraph 58.28(1)(c) of the Act, the circumstances in which a person may construct an international or interprovincial power line that passes on, over, along or under a facility are as follows:

(2) Paragraphs 4(c) and (d) of the Regulations are replaced by the following:

  • (c) written permission has been obtained by the holder or the holder’s sub-contractor from the owner of the facility;

  • (d) a written construction procedure and schedule have been agreed to by the holder or the holder’s sub-contractor and the owner of the facility; and

COMING INTO FORCE

3. These Regulations come into force on the day on which section 87 of the Jobs, Growth and Long-term Prosperity Act , chapter 19 of the Statutes of Canada 2012, comes into force.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

The National Energy Board (the Board) regulates international power lines and designated interprovincial power lines.

The consequential amendments to the Power Line Crossing Regulations (PLCR), SOR/95-500, arise from the amendments to the National Energy Board Act (NEB Act) in the Jobs, Growth and Long-term Prosperity Act (the Act), chapter 19 of the Statutes of Canada, 2012, which received Royal Assent on June 29, 2012. These amending Regulations will come into force when section 87 of the Act comes into force.

Prior to the amendments, the NEB Act required persons to obtain leave of the Board when planning to construct a power line across, on, along or under a facility or utility, or to construct a facility across, on, along or under a power line. The NEB Act gave the Board authority to make orders or regulations for the conditions under which leave of the Board is not required for such crossings. In 1995, the Board made the PLCR, pursuant to paragraph 58.33(c), subsection 108(5.1) and paragraph 112(5)(c) of the NEB Act.

The PLCR establish the conditions under which leave of the Board is not required to construct crossings involving an international or interprovincial power line, or to excavate using power operated equipment or explosives within 30 metres of such a power line. The Regulations also establish minimum technical standards for design and construction of such crossings.

The Standing Joint Committee for the Scrutiny of Regulations reviewed the PLCR and raised an issue of syntax in the portion of section 4 preceding paragraph (a). The Board committed to amending the PLCR to address this issue. However, this issue is no longer relevant because section 4 of the PLCR will be amended to align with the amendments to the NEB Act.

2. Issue

Recent amendments to the NEB Act require consequential amendments to the PLCR.

The PLCR were made pursuant to paragraph 58.33(c), subsection 108(5.1) and paragraph 112(5)(c) of the NEB Act.

Paragraph 112(5)(c) authorized, in part, the making of section 3 of the PLCR. The amendments to that paragraph do not impact section 3, and therefore it is not necessary to amend this section of the PLCR.

The amendments to the NEB Act include

  • a new subsection 58.28. Subsection 58.28(4) gives the Board the authority to make regulations specifying circumstances under which a person may construct an international or interprovincial power line that passes on, over, along or under a facility;
  • the repeal of section 58.29, which dealt with constructing a power line across a facility;
  • the removal of the Board’s authority under the former subsection 108(5.1) to make regulations prescribing the circumstances under which leave under subsection 108 is not necessary to carry an international or interprovincial power line across a utility; and
  • the introduction of new navigable waters provisions through amendments to Part Ⅲ.1 of the NEB Act. These amendments affect the authorities under which the PLCR were made. However, both before and after the amendments to the NEB Act, the PLCR did not and does not contain provisions that govern crossings of navigable waters.

As a result of these amendments to the NEB Act, section 4 of the PLCR is amended to remove references to the sections 58.29 and 108 of the NEB Act and to add a reference to the new paragraph 58.28(1)(c).

3. Objectives

The objectives of the amendments to the PLCR are to

  • reflect the changes to the NEB Act; and
  • maintain existing provisions that minimize the regulatory burden for both specified activities in proximity to power lines, and for the construction of power lines that pass on, over, along or under a facility.

Notwithstanding these amendments, these Regulations continue to have the effect of minimizing the regulatory burden on industry and the public.

4. Description

The consequential amendments to the PLCR reflect amendments to regulation-making power provisions in the NEB Act, particularly those in Part Ⅲ.1, Construction and Operation of Power Lines.

The Board amends the PLCR pursuant to amended paragraphs 58.33(c) and 112(5)(c), and the new subsection 58.28(4) of the NEB Act, where appropriate.

In the new subsection 58.28(4) of the NEB Act, the Board has the authority to make regulations specifying circumstances under which a person may construct an international or interprovincial power line that passes on, over, along or under a facility. The circumstances specified in the amending Regulations remain the same as the circumstances to construct a power line across, on, along or under a facility in the existing section 4 of the PLCR (e.g. meeting certain technical standards for design and construction of power line crossings).

The replacement for section 4 of the PLCR no longer makes reference to sections 58.29 and 108 of the NEB Act. Section 58.29, which deals with constructing a power line across a facility, is repealed. Section 108, which applied to international and interprovincial power lines that cross utilities (other than navigable waters and railways), is replaced. The new section 108 does not apply to international and interprovincial power lines crossing utilities by the operation of the amended section 58.27 and the new section 58.271.

As a result of these amendments to the NEB Act, the portion of section 4 before paragraph (a) of the PLCR is amended to

  • (i) refer to new paragraph 58.28(1)(c) specifying circumstances under which a person may construct an international or interprovincial power line that passes on, over, along or under a facility; and
  • (ii) remove references to sections 58.29 and 108 of the NEB Act.

The reference to “utility owner” in paragraphs 4(c) and (d) of the PLCR are removed because the new section 58.28 does not deal with utilities, and the amended section 58.27 and the new section 58.271 exclude the application of section 108 for international and interprovincial power lines that cross utilities. Paragraphs 4(c) and (d) were the only provisions that referred to “utility owner” in the PLCR. As a result, the definition of “utility owner” in the PLCR becomes unnecessary and is repealed.

The definitions of “international power line” and “interprovincial power line” in section 2 of the NEB Act are unchanged. The new section 58.303 of the NEB Act identifies the classes of power lines to which the new sections 58.28 and 58.31 of the NEB Act apply. The existing section 58.24 of the NEB Act, together with the amended section 58.27 and the new 58.271, identifies the classes of power lines to which section 112 applies. Therefore, the application provisions of the NEB Act describe the classes of power line to be used in interpreting sections 3 and 4 of the PLCR. Consequently, the current definition of “power line” becomes unnecessary and is repealed.

The term “facility” is used in the NEB Act and it is not defined. The meaning of “facility” in the PLCR is intended to be the same as the meaning in the NEB Act. Consequently, the definition of “facility” in the PLCR is unnecessary and the definition is deleted.

5. Consultation

The Board notified NEB-regulated companies and other interested people and groups that the proposed amendments to the PLCR aligned with amendments to the NEB Act and the Board invited written comments for a period of 30 days on the draft regulations. The draft Regulations Amending the Power Line Crossing Regulations were also posted on the NEB Web site. The Board received no comments.

As the modifications to the PLCR have no impact and continue to have the effect of minimizing the regulatory burden on industry and the public, the amendment is exempted from prepublication and is being published directly in the Canada Gazette, Part Ⅱ.

These Regulations will come into force when section 87 of the Jobs, Growth and Long-term Prosperity Act, chapter 19 of the Statutes of Canada, 2012, comes into force.

6. Rationale

The consequential amendments to the PLCR arise from the amendment to the NEB Act, which received Royal Assent on June 29, 2012.

7. Contact

Chantal Briand
Regulations Drafting Specialist
Regulatory Approaches
Strategy and Analysis
National Energy Board
444 Seventh Avenue SW
Calgary, Alberta
T2P 0X8
Telephone: 403-292-4800
Email: chantal.briand@neb-one.gc.ca

Footnote a
S.C. 2012, c. 19. s. 87

Footnote b
S.C. 2012, c. 19, s. 88

Footnote c
S.C. 2012, c. 19, s. 92(1)

Footnote d
R.S., c. N-7

Footnote 1
SOR/95-500