ARCHIVED — Vol. 150, No. 13 — June 29, 2016

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Registration

SOR/2016-124 June 7, 2016

NATIONAL ENERGY BOARD ACT

National Energy Board Pipeline Damage Prevention Regulations – Authorizations

The National Energy Board, pursuant to subsections 112(5) (see footnote a) and (5.1) (see footnote b) of the National Energy Board Act (see footnote c), makes the annexed National Energy Board Pipeline Damage Prevention Regulations – Authorizations.

Calgary, May 19, 2016

Sheri Young
Secretary of the National Energy Board

National Energy Board Pipeline Damage Prevention Regulations – Authorizations

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Act means the National Energy Board Act. (Loi)

facility means any structure, highway, private road, railway, irrigation ditch, drain, drainage system, sewer, dike, telephone line, telegraph line, telecommunication line, line for the transmission of electricity or pipe for the transmission of hydrocarbons or any other substance. (installation)

offshore area means the submarine areas adjacent to the coast of Canada. (zone extracôtière)

overhead line means a facility that is an above-ground telephone, telegraph, telecommunication or electric power line or any combination of those lines. (ligne aérienne)

pipe means a pipe that is part of a pipeline and that is used or is to be used for the transmission of hydrocarbons or any other commodity. (conduite)

working day means any day that is not a Saturday or a Sunday or other holiday. (jour ouvrable)

General Provisions

Prescribed area

2 For the purposes of subsection 112(1) of the Act, the prescribed area means a strip of land measured 30 m perpendicularly on each side from the centreline of a pipe.

Locate request — person

3 (1) Subject to subsection (2), any person that intends to construct a facility across, on, along or under a pipeline or engage in an activity that would cause a ground disturbance within a prescribed area must make a locate request in the following manner at least three working days before the day on which the construction or activity is to start:

  • (a) to a one-call centre if the intended construction or activity is within an area where a one-call centre exists; or
  • (b) to the pipeline company directly if the intended construction or activity is not within an area where a one-call centre exists.
Locate request — pipeline company

(2) Any pipeline company that intends to construct a facility across, on, along or under its pipeline or engage in an activity that would cause a ground disturbance within a prescribed area must make a locate request to a one-call centre at least three working days before the day on which the construction or activity is to start if the intended construction or activity is within an area where a one-call centre exists.

Emergency

(3) In the case of an unexpected situation that could endanger life or cause substantial property or environmental damage that requires immediate action, the three-day period set out in subsections (1) and (2) does not apply and the locate request must be made as soon as possible before the construction or activity starts.

One-call centre

(4) A one-call centre is an organization that, for the purposes of protecting the underground infrastructures of its members from damage and ensuring public safety,

  • (a) receives locate requests from within a defined geographical area; and
  • (b) notifies its members that may be affected by any proposed construction or any proposed activity that would cause a ground disturbance and that are the subject of a locate request of that construction or activity.
Duty to inform

4 Any person that intends to construct a facility across, on, along or under a pipeline, engage in an activity that would cause a ground disturbance within a prescribed area or operate a vehicle or mobile equipment across a pipeline must, before the construction, activity or operation is to start, inform all persons working on their behalf, including employees, contractors and subcontractors, of their obligations under these Regulations.

Designation of temporary prohibition area

5 If a pipeline company, after having received a locate request from a person that intends to engage in an activity that would cause a ground disturbance within a prescribed area, designates an area that is situated in the vicinity of a pipeline and that may extend beyond the prescribed area as a prohibition area, the ground disturbance is prohibited within the area during the period referred to in subsection 112(5.1) of the Act.

Authorization Under the Act

Pipeline company

6 For the purposes of subsection 112(1) and paragraph 112(2)(a) of the Act and despite sections 7 and 9 to 13 of these Regulations, the construction of a facility — in an area other than an offshore area — across, on, along or under a pipeline, an activity — in an area other than an offshore area — that would cause a ground disturbance within a prescribed area and the operation of a vehicle or mobile equipment across a pipeline is authorized if the pipeline company that intends to carry out the construction, activity or operation

  • (a) is authorized to carry out the construction, activity or operation under the Act;
  • (b) makes a locate request in accordance with section 3; and
  • (c) if another pipeline company receives the locate request, the pipeline company that made the locate request obtains from the other pipeline company the information that is referred to in paragraphs 6(1)(a) and (c) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies.

Facility

Authorization – of construction

7 (1) For the purposes of subsection 112(1) of the Act, the construction of a facility — in an area other than an offshore area — across, on, along or under a pipeline, other than the construction of an overhead line referred to in section 9, is authorized if the person that intends to construct the facility

  • (a) obtains the pipeline company’s written consent;
  • (b) makes a locate request in accordance with section 3; and
  • (c) obtains from the pipeline company the information that is referred to in paragraphs 6(1)(a) and (c) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies .
Suspension

(2) If the consent is suspended by the Board, or by the pipeline company in accordance with subsection 10(1) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies, the authorization is suspended and the construction must cease for the duration of the suspension of the consent.

Measures

(3) Any person that is undertaking the construction of a facility must comply with the following measures:

  • (a) ensure that the construction is carried out in accordance with the technical details that are set out in the person’s request for consent and that have been accepted by the pipeline company, as well as with the conditions set out in the pipeline company’s consent;
  • (b) ensure that the construction is completed within two years after the day on which the consent was obtained, unless the pipeline company and the person agree on another time period that is set out in the consent;
  • (c) comply with the instructions of the pipeline company’s authorized field representative regarding the procedures that are to be followed while carrying out the construction in the vicinity of a pipe and that relate to the pipeline’s safety and security;
  • (d) if interference with or alteration of a pipe becomes necessary, obtain the pipeline company’s written consent to interfere with or alter the pipe;
  • (e) carry out any construction that involves the interference with or alteration of a pipe under the pipeline company’s supervision; and
  • (f) immediately notify the pipeline company of any contact with a pipe or its coating during the construction.
Obligations — existing facilities

8 The owner of a facility that is constructed — in an area other than an offshore area — across, on, along or under a pipeline must

  • (a) maintain the facility in a state of good repair compatible with the pipeline’s safety and security;
  • (b) immediately correct any deterioration in the facility on being so notified in writing by the pipeline company under subsection 9(1) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies;
  • (c) notify the pipeline company, in writing, of any proposed abandonment or removal of the facility; and
  • (d) remove or alter the facility or part of the facility that could adversely affect the pipeline’s safe and efficient operation or that could jeopardize property and the environment and the safety and security of the public and of the pipeline company’s employees.
Authorization for construction of overhead line

9 (1) For the purposes of subsection 112(1) of the Act, the construction of an overhead line across a pipeline — in an area other than an offshore area — is authorized if the person that intends to construct the overhead line

  • (a) makes a locate request in accordance with section 3;
  • (b) confirms with the pipeline company that all of the pipeline company’s pipes in the vicinity of the construction have been marked; and
  • (c) obtains from the pipeline company the information that is referred to in paragraphs 6(1)(a) and (c) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies.
Measures

(2) Any person that is undertaking the construction of an overhead line across a pipeline must comply with the following measures:

  • (a) construct the overhead line in accordance with any applicable provincial and federal law;
  • (b) if the pipeline is patrolled by aircraft and if the overhead line poses a risk to the aircraft, install and maintain aerial warning devices; and
  • (c) not construct or place any kind of pole, pylon, tower, guy, anchor or supporting structure across, on, along or under the pipeline.

Activity that Causes a Ground Disturbance

Authorization – ground disturbance activity

10 (1) For the purposes of subsection 112(1) of the Act, any activity — in an area other than an offshore area — that would cause a ground disturbance within the prescribed area, other than an activity referred to in section 11, is authorized if the person that intends to engage in the activity

  • (a) obtains the pipeline company’s written consent;
  • (b) makes a locate request in accordance with section 3; and
  • (c) obtains from the pipeline company the information that is referred to in paragraphs 6(1)(a) and (c) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies.
Suspension

(2) If the consent is suspended by the Board, or by the pipeline company in accordance with subsection 10(1) of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies, the authorization is suspended and the activity must cease for the duration of the suspension of the consent.

Measures

(3) Any person that is engaged in an activity that causes a ground disturbance within the prescribed area must comply with the following measures:

  • (a) ensure that the activity is carried out in accordance with the technical details that are set out in the person’s request for consent and that have been accepted by the pipeline company, as well as with the conditions set out in the pipeline company’s consent, including the conditions respecting directional drilling or the use of explosives;
  • (b) ensure that the activity is completed within two years after the day on which the consent was obtained, unless the pipeline company and the person agree on another time period that is set out in the consent;
  • (c) not undertake mechanical excavation that would cause a ground disturbance within the prescribed area within 3 m of a pipe, unless
    • (i) if the excavation runs parallel to the pipe, the pipe has been exposed by hand at sufficient intervals to confirm the pipe’s location or the pipeline company has used a method that would permit it to confirm the pipe’s exact location and has informed the person of that location,
    • (ii) if the excavation crosses the pipe, the pipe has been exposed by hand at the point of crossing or the pipeline company has used a method that would permit it to confirm the pipe’s exact location, has informed the person of that location and has confirmed that the pipe is at least 60 cm deeper than the proposed excavation, and
    • (iii) if ground conditions render it impractical to locate the pipe using any of the methods set out in subparagraphs (i) and (ii), the pipeline company directly supervises any excavation;
  • (d) comply with the instructions of the pipeline company’s authorized field representative regarding the procedures that are to be followed during the activity and that relate to the pipeline’s safety and security;
  • (e) if interference with or alteration of a pipe becomes necessary, obtain the pipeline company’s written consent to interfere with or alter the pipe;
  • (f) carry out any activity that involves the interference with or alteration of a pipe under the pipeline company’s supervision;
  • (g) immediately notify the pipeline company of any contact with a pipe or its coating during the activity; and
  • (h) unless otherwise agreed on by the pipeline company and the person that is engaged in the activity, notify the pipeline company at least 24 hours before backfilling over a pipe.
Authorization — activity required for maintenance of facility

11 For the purposes of subsection 112(1) of the Act, any maintenance of an existing facility — in an area other than an offshore area — that causes a ground disturbance within the prescribed area is authorized if the person engaged in the maintenance complies with paragraphs 10(1)(b) and (c) and the measures set out in paragraphs 10(3)(c) to (h).

Operation of Vehicles or Mobile Equipment Across a Pipeline

Authorization – operation across pipeline

12 Subject to section 13 and for the purposes of paragraph 112(2)(a) of the Act, the operation of a vehicle or mobile equipment across a pipeline is authorized if the person that intends to operate the vehicle or mobile equipment across the pipeline obtains the pipeline company’s written consent.

Authorization — agricultural activity

13 (1) For the purposes of paragraph 112(2)(a) of the Act, the operation across the pipeline of a vehicle or mobile equipment that is used to perform an agricultural activity is authorized if the following conditions are met:

  • (a) the loaded axle weight and tire pressures of the vehicle or mobile equipment are within the manufacturer’s approved limits and operating guidelines; and
  • (b) the point of crossing has not been the subject of a notification under section 7 of the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies.
Definition of agricultural activity

(2) In this section, agricultural activity means the production of crops and the raising of animals and includes tillage, plowing, disking, harrowing and pasturing, but does not include the construction of new buildings or impervious areas or the placement of footings, foundations, pilings or posts, including fence posts.

Application for Authorization

File application with Board

14 (1) A person that intends to construct a facility across, on, along or under a pipeline, engage in an activity that would cause a ground disturbance within the prescribed area of a pipeline or operate a vehicle or mobile equipment across a pipeline may file an application for authorization with the Board if

  • (a) the construction, activity or operation is not authorized under subsection 7(1), 9(1) or 10(1) or section 11 or 12; or
  • (b) the person is unable to comply with the applicable measures set out in subsection 7(3), 9(2) or 10(3).
Service

(2) If a person files an application under subsection (1), that person must serve a copy of the application on the pipeline company that operates the pipeline in question.

Transitional Provisions

Construction or excavation

15 (1) Any leave granted by the Board prior to June 19, 2016 to construct a facility across, on, along or under a pipeline or to excavate using power-operated equipment or explosives within 30 m of a pipeline under subsection 112(1) of the Act, as it read immediately prior to that date, expires on the date set out in the leave, but if there is no date set out in the leave it expires two years after the day on which the leave was granted.

Crossing

(2) Any leave granted by the pipeline company prior to June 19, 2016 to operate a vehicle or mobile equipment across a pipeline under subsection 112(2) of the Act, as it read prior to that date, expires on the date set out in the leave granted by the pipeline company.

Construction or installation of facility

16 The construction or installation of a facility in respect of which a person has obtained written permission under paragraph 4(b) of the National Energy Board Pipeline Crossing Regulations, Part I prior to June 19, 2016 is authorized under subsection 112(1) of the Act, as it reads on June 19, 2016, and the measures to be taken in relation to that construction or installation are those set out in paragraphs 4(a) to (m) of those Regulations as they read immediately before the day on which these Regulations come into force.

Excavation

17 An excavation in respect of which a person has obtained the pipeline company’s written permission under paragraph 6(b) of the National Energy Board Pipeline Crossing Regulations, Part I prior to June 19, 2016 is an authorized ground disturbance under subsection 112(1) of the Act, as it reads on June 19, 2016, and the measures to be taken in relation to the excavation are those set out in section 6 of those Regulations as it read immediately before the day on which these Regulations come into force.

Application Prior to Publication

Statutory Instruments Act

18 For the purposes of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply before they are published in the Canada Gazette.

Repeal

19 The National Energy Board Pipeline Crossing Regulations, Part I (see footnote 1) are repealed.

Coming into Force

S.C. 2015, c. 21

20 These Regulations come into force on the day on which section 34 of the Pipeline Safety Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Pipeline Safety Act, which received royal assent on June 18, 2015, amends the National Energy Board Act (NEB Act) to modernize its regulation-making authority. The National Energy Board’s (NEB or Board) Regulations for pipeline damage prevention are updated to align with the Pipeline Safety Act. The Regulations clarify for the public, landowners, land users, and pipeline companies what the requirements are to safely carry out activities, construction, or crossings around a pipeline.

Background

Under the NEB Act, the responsibility to prevent pipeline damage is shared between anyone who plans to conduct an activity near a pipeline and the pipeline company. Pipeline companies are required to ensure that people know how to safely conduct activities near pipelines, and people planning activities near pipelines are required to confirm the location of pipelines and meet all conditions before they start these activities. The NEB provides regulatory oversight for both, and must create the conditions necessary to hold persons and companies accountable for carrying out these responsibilities. The NEB’s compliance verification and enforcement activities support this framework and are used to promote safety and environmental protection.

The Pipeline Safety Act, which received royal assent on June 18, 2015, amends the damage prevention provisions in the NEB Act, therefore requiring that new regulations be in place by June 19, 2016. The regulations reflect the changes to the legislative authority for the NEB’s damage prevention regulatory framework.

Regulations

The National Energy Board Pipeline Damage Prevention Regulations – Authorizations (DPR-Authorizations), made under subsections 112(5) and 112(5.1) of the NEB Act, are now in force. These Regulations replace the National Energy Board Pipeline Crossing Regulations, Part I. They set out what is required for anyone planning an activity near an NEB-regulated pipeline. The reciprocal responsibilities of pipeline companies are contained in the National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies.

This Regulatory Impact Analysis Statement (RIAS) addresses the requirements in the DPR-Authorizations; the regulations below, which support the DPR-Authorizations, are addressed in a separate RIAS:

  • National Energy Board Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies [made under subsections 48(2) and 112(5) of the NEB Act]

These Regulations replace the National Energy Board Pipeline Crossing Regulations, Part II. They set out requirements for NEB-regulated pipeline companies to prevent damage to their pipelines.

  • Regulations Amending the National Energy Board Onshore Pipeline Regulations (OPR) [made under subsection 48(2) of the NEB Act]

The OPR set requirements for pipeline companies regarding the design, construction, operation and abandonment of their pipelines while managing with a view to overall safety and environmental protection.

  • Regulations Amending the Administrative Monetary Penalties Regulations (National Energy Board) [NEB AMPs Regulations] (made under section 134 of the NEB Act)

Through the NEB AMPs Regulations, the NEB may apply administrative monetary penalties to companies or individuals for non-compliance with the NEB Act, regulations, decisions, permits, orders, licences or certificate conditions.

Objectives

The objectives of the National Energy Board Pipeline Damage Prevention Regulations – Authorizations are to

  • align the Regulations with the changes that the Pipeline Safety Act makes to the NEB Act;
  • clarify the requirements for anyone planning activities near a pipeline, including construction, ground disturbances, or crossings, so that the activities can be carried out safely; and
  • enhance safety through coordinated information sharing between pipeline companies, one-call centres, and anyone initiating a locate request before starting any activities near a pipeline.

Description

The Pipeline Safety Act amendments to the NEB Act are in force as of June 19, 2016, requiring that the NEB’s Regulations for pipeline damage prevention be updated by that date. In addition, the NEB had proposed amendments to the Regulations, and consulted on these in 2014, including the requirement to make locate requests to one-call centres where they exist when planning to conduct an activity near a pipeline.

Prescribed area

The Pipeline Safety Act amends the NEB Act to prohibit any ground disturbance near a pipeline, unless the activity is authorized by an order or by regulations. The Pipeline Safety Act replaces references to the activities of excavating using power equipment or explosives within 30 m of the pipeline with the term “ground disturbance” within the prescribed area. The Pipeline Safety Act further specifies that the following are not considered to be ground disturbances: (1) cultivation to a depth of less than 45 cm below the surface of the ground, and (2) any other activity to a depth of less than 30 cm and that does not result in a reduction of the earth cover over the pipeline to a depth that is less than the cover provided when the pipeline was constructed.

Under the Pipeline Safety Act, the NEB may make orders or regulations prescribing the area where ground disturbance is prohibited. The NEB may also set out in orders or regulations the conditions and measures to be met for ground disturbance activities to be permitted within a prescribed area. The prescribed area is the measurable distance within which activity that may cause a ground disturbance is prohibited unless strict conditions are met, and the responsibilities of both persons and pipeline companies are identified.

In the DPR-Authorizations, the prescribed area is defined as a strip of land measured 30 m perpendicularly on each side from the centreline of a pipe. Given this definition of prescribed area, all planned activities that would cause a ground disturbance within 30 m from either side of the centreline of a pipe would only be authorized if the conditions provided in the Regulations are met. If these conditions cannot be met, the person may file an application for authorization with the Board for these activities to occur.

Ground disturbance

A person planning to engage in an activity that would cause a ground disturbance or construct a facility near a pipeline will need to

  • obtain written consent from the pipeline company prior to engaging in the activity that causes the ground disturbance, and accept any conditions set out by the consent;
  • ensure that the work is carried out in accordance with the technical details that are set out in the request for consent that have been accepted by the pipeline company; and
  • comply with all the instructions provided by the pipeline company.
Construction

Similarly, the conditions and measures contained in the current Regulations are maintained in the Regulations for construction activities near a pipeline. For example, a person planning to construct a facility near a pipeline will need to

  • obtain written consent from the pipeline company prior to the construction of a facility, and accept any conditions set out by the consent;
  • ensure that the work is carried out in accordance with the technical details that are set out in the request for consent that have been accepted by the pipeline company; and
  • comply with all the instructions provided by the pipeline company.

The previous Regulations contained a requirement that overhead lines across pipelines were to be installed in accordance with the minimum ground-to-wire clearance in standard C22.3, No. 1-M87, 1987, of the Canadian Standards Association (published in French in 1989). The DPR-Authorizations state that construction of an overhead line across a pipeline must comply with provincial and federal laws.

Crossings

Currently, the NEB Act provides that anyone wishing to operate a vehicle or mobile equipment across a pipeline must obtain permission from the pipeline company, unless the vehicle or mobile equipment is operated within the travelled portion of a highway or public road. The Pipeline Safety Act amends the NEB Act to prohibit crossing a pipeline by vehicle or mobile equipment unless measures in the Regulations are followed or a Board order authorizes the crossing. As a result, the DPR-Authorizations provide that anyone planning to cross a pipeline with a vehicle or mobile equipment will require consent from the pipeline company before crossing the pipeline and must follow any conditions identified by the company.

The Regulations also incorporate the intent of the NEB’s Exemption Order Respecting Crossings by Agricultural Vehicles or Mobile Equipment (Order MO-21-2010). Specifically, vehicles or mobile equipment used for agricultural purposes may cross pipelines if the loaded axle weight and tire pressures are within the manufacturer’s approved limits and the point of crossing has not been identified by the pipeline company as a location where agricultural activities have the potential to damage the pipeline. Such crossings are also subject to the requirements related to activities causing ground disturbances outlined above, if applicable.

Pipeline companies

The previous Regulations provided that the Regulations do not apply to excavation caused by an NEB-regulated pipeline company. The Regulations now include specific requirements for authorization of a pipeline company to conduct activity causing a ground disturbance within a prescribed area, construct a facility near a pipeline, or operate a vehicle or mobile equipment across the pipeline. The requirements include authorization under other NEB Act authorizations (e.g. certificates or orders); conducting a locate request for an activity causing a ground disturbance or construction; and, if it is not the requesting company’s pipeline, the pipeline must be marked and the markings explained to the company intending to carry out the construction or activity.

Application for authorization

In any of the situations described above (i.e. for a person planning to engage in an activity that may cause a ground disturbance, or to construct a facility, or to operate a vehicle or mobile equipment across a pipeline), if consent cannot be obtained from the pipeline company, or the measures in the Regulations cannot be met, the process in the Regulations is, as it was in the previous Regulations, that the person could apply to the Board for an authorization to conduct the activity.

Locate requests

The Regulations require that anyone planning to construct a facility or conduct an activity that would cause a ground disturbance in a prescribed area initiate a locate request through the one-call centre that services the area in question at least three working days before the day on which the construction or activity is to start. Where a one-call centre does not exist, a person must contact the pipeline company directly. NEB-regulated pipeline companies continue to be required to clearly mark their pipelines.

Existing permissions

The Regulations contain transitional clauses to capture existing permissions related to the construction of a facility near a pipeline, excavation using power equipment or explosives within 30 m of a pipeline, and crossings by vehicle or mobile equipment. Transitional clauses allow the activities to continue under the existing permission without causing an unnecessary delay due to the new Regulations.

“One-for-One” Rule

There are no incremental administrative requirements associated with the Regulations; therefore, the “One-for-One” Rule does not apply.

Small business lens

The small business lens does not apply to the Regulations.

Consultation

The NEB issued a letter on its Web site on October 20, 2015, providing information that the NEB’s damage prevention regulations must be updated following adoption of the Pipeline Safety Act, and that the previously proposed amendments would be carried forward into the proposed Regulations. In addition to being available on the NEB Web site, these materials were distributed to groups that had shown previous interest in the NEB’s damage prevention regulations. The NEB received 18 letters of comment from a variety of groups, including landowner and damage prevention associations, industry associations, farming, agricultural and sod associations, a municipality, NEB-regulated companies and interested individuals. Twelve letters expressed support for requirements for companies to have a damage prevention program, with specific damage prevention controls, and to belong to a one-call centre.

On January 8, 2016, the NEB provided the information issued on its Web site on October 20, 2015, to indigenous organizations in the geographic areas across Canada where NEB-regulated pipelines operate. The information provided an offer that NEB technical staff meet with indigenous organizations to explain the information on updates required for the Regulations.

On March 18, 2016, the NEB issued a notification on its Web site that the proposed Regulations were available in the Canada Gazette, Part I, for a 30-day comment period ending April 18, 2016. The notification and a copy of the proposed Regulations from the Canada Gazette, Part I, were emailed to over 120 recipients across Canada, including national and regional landowner and damage prevention associations; farming, agricultural, nursery and sod associations; municipal associations; industry associations; NEB-regulated companies; and interested individuals. The notification and proposed Regulations were emailed to 36 indigenous organizations in the geographic areas across Canada where NEB-regulated companies operate pipelines. On-line information sessions and meetings were held during the comment period to provide information and answer questions on the proposed Regulations. The NEB received 30 letters of comment from a range of stakeholders interested in damage prevention as well as pipeline companies.

Many of the comments submitted are related to implementation of safety requirements in the previous Regulations, which are largely maintained in the Regulations. The basic safety steps in the damage prevention framework required by both previous and the updated Regulations include planning the activity and including time for approvals; making a locate request and contacting the pipeline company; being on-site when the pipeline is located and knowing the meaning of the pipeline markers; following the pipeline company’s safety measures and the instructions of the on-site pipeline company representative. Requests for further clarification of the requirements for pipeline damage prevention are addressed in NEB guidance materials.

Prescribed area

Damage prevention and agricultural stakeholders tended to support the prescribed area, set at 30 m measured perpendicularly on either side from the centerline of the pipe. Pipeline companies tended to want to retain the provisions in the NEB Act prior to the Pipeline Safety Act amendments (30 m on either side of the right-of-way). Some supported the change as it harmonizes with the approach taken in a number of provinces.

The requirement for a safety zone existed in the previous damage prevention scheme — how it is measured is different. The delineation of the safety zone as the prescribed area will now be more accurate and is more closely harmonized with provincial requirements (a request which had been made by parties previously).

Conducting activities, construction and crossings around a pipeline

Considerations for conducting ground disturbance activities, construction or crossings around a pipeline were submitted by groups representing different interests. Municipalities noted the importance of being able to conduct routine municipal work in the prescribed area in a timely way. Indigenous organizations expressed an interest in being able to continue traditional harvesting activities and to access traditional harvesting areas or recreational use areas. Landowners indicated the need to be able to access and conduct activities on their land.

The requirements to follow when conducting activities near pipelines in the previous Regulations are largely maintained in the updated Regulations. The purpose of the Regulations is to ensure safety for all involved. In the updated Regulations, as was the case in the previous Regulations, anyone planning an activity near a pipeline can apply to the Board if they cannot meet the measures set by the pipeline companies. Companies must manage vehicle crossings of pipelines within the management system of their damage prevention program. As with the previous Regulations, companies must assess whether any activities near or across the pipeline are a hazard, through their damage prevention program. Companies manage their communication and processes for these matters through their public awareness programs.

As a result of stakeholder comments, the definition of agricultural activity in section 13 has been changed for clarity regarding the scope of these activities.

CSA standard for damage prevention

A number of pipeline companies and members of the damage prevention community requested that the CSA standard for damage prevention for buried facilities (CSA Z247 – Damage Prevention for the Protection of Underground Infrastructure) be incorporated by reference into the Regulations. However, CSA Z247 is duplicative of a number of requirements already contained in the NEB regulations for pipeline damage prevention. As well, it contains a lesser requirement for companies to belong to a one-call centre (shall consider registering instead of must be a member). Pipeline companies and damage prevention organizations may implement CSA Z247 at any time; however, they must comply with the damage prevention requirements of the Act and associated regulations.

Comments related to the Pipeline Safety Act

Depth of cover

A number of comments submitted enquired about how “depth of cover” is assessed, as the Pipeline Safety Act provides that an activity is not a ground disturbance if it is to a depth of less than 30 cm and does not result in a reduction of the earth cover over the pipeline to a depth that is less than the cover provided when the pipeline was constructed [paragraph 2(c)]. Pipeline companies survey their pipelines periodically to assess depth of cover. When a person is planning a ground disturbance activity or the construction of a facility near a pipeline, they must contact the pipeline company and the pipeline company must provide the information necessary for the person to plan and safely undertake the activity, including information about adequate depth of cover. If the proposal involves an activity that is less than 30 cm but involves the removal of cover, the pipeline company should be contacted to determine whether the depth of cover over the pipeline will be adequate for the activity to fit within the exemption. Further information is provided in NEB guidance.

The term “une culture” in the Pipeline Safety Act definition of ground disturbance

The Union des producteurs agricoles (UPA) requested clarification of the term “une culture” in the Pipeline Safety Act (“cultivation” in the English version of the statute). The UPA noted that the meaning of the term “une culture” in the French version of the statute, as understood in French, could refer to a single plant, as well as activities associated with agricultural production. The Pipeline Safety Act amends the NEB Act to include a prohibition against engaging in an activity that causes a ground disturbance within a prescribed area around an NEB-regulated pipeline, unless that activity is authorized by Board orders or regulations. Section 2 of the Pipeline Safety Act stipulates that certain activities do not constitute a “ground disturbance.” One of these is “cultivation to a depth of less than 45 cm below the surface of the ground.” The prohibition against ground disturbances in the prescribed area, as well as the exceptions to the term “ground disturbance,” contained in the Pipeline Safety Act focus on actions or activities that disturb the ground.

Rationale

The Pipeline Safety Act enables modernization of NEB Act regulations for pipeline damage prevention, and brings them in line with more recent provincial damage prevention regulations. While the requirements for anyone planning construction or activity near a pipeline, or crossing it with a vehicle or mobile equipment remain largely the same, they also provide clarity about the regulatory requirements for all involved to prevent damage to a pipeline and to maintain the safety of people and protection of the environment.

The Regulations set the prescribed area at 30 m measured perpendicularly from either side of the centreline of the pipe. This distance can be accurately measured and is a balanced approach to meet the needs of the pipeline companies and landowners and land users. The distance of 30 m on either side of the centreline of the pipe also aligns with more recent provincial legislation and regulations.

The Regulations replace a requirement to follow a minimum standard for ground-to-wire clearance when constructing an overhead line across a pipeline with a requirement to comply with applicable provincial and federal laws.

The Regulations require that pipeline companies intending to construct a facility or engage in an activity that would cause a ground disturbance in the prescribed area must make a locate request on its pipeline. This requirement is included in order to ensure current information about the pipeline is available prior to work starting, as circumstances may have changed since the last time the pipeline was mapped or located.

Implementation, enforcement and service standards

Under the NEB Act, the NEB enforces regulatory requirements to obtain compliance, deter future non-compliance, and prevent harm by using the most appropriate tools available. No changes to compliance and enforcement authority or responsibilities result from these Regulations. The NEB has trained and qualified damage prevention inspectors and enforcement personnel, and existing regulatory oversight programs. The NEB will continue to perform regular inspections and audits.

The NEB uses a series of compliance and enforcement tools, including audits and inspections, compliance meetings, notices of non-compliance, orders and administrative monetary penalties to encourage compliance with the Regulations to minimize infractions related to safety and damage prevention. Each case is examined on an individual basis to determine the best course of enforcement to make sure damage prevention and safety requirements are followed. The updated Administrative Monetary Penalties Regulations (National Energy Board) will be implemented where appropriate.

There are no new service standards in the Regulations. There are existing Board processes in place to support the implementation of the Regulations, and NEB guidance will be updated to reflect the Regulations. Existing time requirements are carried over into the Regulations, including the 24-hour notice prior to backfilling. As in the previous Regulations, if the pipeline company does not give its consent to a person wishing to conduct an activity near its pipeline, the person can apply to the Board for authorization.

All of the regulations come into force on the first day on which section 15 and section 34 of the Pipeline Safety Act are in force, but if they are registered after that day, they come into force on the day on which they are registered.

Contact

Shannon Neufeld
Technical Leader, Damage Prevention
National Energy Board
517 Tenth Avenue SW
Calgary, Alberta
T2R 0A8
Toll-free telephone: 1-800-899-1265
Fax: 403-299-5503
Toll-free fax: 1-877-288-8803
Email: shannon.neufeld@neb-one.gc.ca