International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates: SOR/2020-49

Canada Gazette, Part II, Volume 154, Number 7

Registration
SOR/2020-49 March 16, 2020

CANADIAN ENERGY REGULATOR ACT

P.C. 2020-141 March 13, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources, pursuant to paragraphs 96(c) to (f) and 275(3)(b) of the Canadian Energy Regulator Act footnote a, approves the annexed International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates, made by the Canadian Energy Regulator.

The Canadian Energy Regulator, pursuant to paragraphs 96(c) to (f) and 275(3)(b) of the Canadian Energy Regulator Act footnote a makes the annexed International and Interprovincial Power Line Damage Prevention Regulations — Obligations of Holders of Permits and Certificates.

Calgary, November 25, 2019

Katherine Murphy
Chief of Staff and Corporate Secretary, Canadian Energy Regulator

International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates

Interpretation

Definitions

1 The following definitions apply in these regulations.

One-call Centre

Obligation to be member

2 (1) If a holder operates an international or interprovincial power line within a geographical area where there is a one-call centre, the holder must be a member of that centre.

One-call centre

(2) 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,

Authorizations

Powers of holder

3 A holder may give authorizations under paragraph 275(1)(c), (d) or (f) of the Act and may require that the authorization be subject to any conditions that the holder considers appropriate.

Obligations Following Request to Locate

Time period

4 If a holder receives a request to locate the holder’s international or interprovincial power line from a person who intends to construct a facility across, on, along or under an international or interprovincial power line or engage in an activity that causes a ground disturbance within the prescribed area, the holder must, within three working days, after the day on which the request is made, or any longer period agreed to by the holder and that person,

Inspections by Holder

Inspections and field observations

5 To ensure the safety and security of persons and the protection of property and the environment in relation to an activity that causes a ground disturbance within the prescribed area, the holder must

Obligation to Report

Report to Regulator

6 Beginning with the year 2021, the holder must, no later than January 31 of each calendar year, provide the Regulator a report for the previous calendar year that contains the following information:

Management System

Records

Time period — construction and activities

7 (1) The holder must maintain a record of all construction of facilities across, on, along or under its international or interprovincial power line and of all activities that cause a ground disturbance within the prescribed area for the life of that line.

Contents of record

(2) The record must contain, for each facility or each activity that causes a ground disturbance,

Time period — certain authorizations

(3) Despite subsection (1), if there is an expiry date set out in the authorization, the holder need only retain the record that contains the copy of the written authorization for a period of 12 months from the day on which the authorization expires.

Damage Prevention Program

Minimum elements

8 (1) The holder is required to develop, implement and maintain a damage prevention program that must include

Existing damage prevention program

(2) A holder is not required to establish a new damage prevention program if the holder already has one, as required by the conditions of the certificate or permit, and that program meets the requirements of subsection (1).

Time limit for compliance

(3) A holder must establish a damage prevention program within 12 months after the day on which the certificate or permit is issued or within a time limit set out in the conditions of the certificate or permit.

Transitional Provision

Damage prevention program

9 A holder that has been issued a certificate or permit, authorizing the holder to construct or operate an international or interprovincial power line, under the National Energy Board Act before the coming into force of these Regulations, must establish a damage prevention program within 12 months after the day on which these Regulations come into force or within a time limit specified or set out in the conditions in the certificate or permit.

Coming into Force

S.C. 2019, c. 28, s. 10

10 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts came into force on August 28, 2019. Through this Act, the National Energy Board Act (NEB Act) is repealed, and the regulator becomes the Canadian Energy Regulator (CER or Regulator). The Commission is responsible for the adjudicative functions of the Regulator.

Prior to the Canadian Energy Regulator Act (CER Act), the Power Line Crossing Regulations (PLCR), made under the NEB Act, set out the process for safely conducting specified activities near international or interprovincial power lines (power lines) as described in subsection 58.303(1) of the NEB Act. The PLCR provided that specified activities could be conducted near power lines if certain safety conditions were met, including obtaining the permission of the certificate or permit holder.

The CER Act updates the damage prevention provisions and regulation-making authorities that were in the NEB Act for safely conducting activities near power lines described in subsection 271(1). The PLCR was not aligned with the changes introduced by the CER Act to the power line damage prevention provisions and regulation-making authorities, and new regulations are required.

Objective

The objectives of the International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates (Regulations) are to

Description

The Regulations (made under CER Act paragraphs 96(c) to (f) and 275(3)(b)) apply to the holder of a permit or certificate (holder) issued for international or interprovincial power lines as defined in the Regulations. Reciprocal regulations are also being enacted as the International and Interprovincial Power Line Damage Prevention Regulations – Authorizations (made under CER Act subsections 272(4) and 275(2)), and apply to those seeking an authorization from a holder, and the holder (referred to herein as the Reciprocal Regulations).

Holders responding to requests to conduct construction, activities and crossings

The Regulations set out the authorization framework for power line damage prevention as provided in the CER Act for those planning to construct a facility (in an area other than an offshore area) across, on, along or under the power line (near a power line); engage in an activity that causes a ground disturbance within a prescribed area (described in the Reciprocal Regulations); or operate a vehicle or mobile equipment across a power line (crossing a power line), unless within the travelled portion of a highway or public road.

The conditions found in the previous regulations (PLCR) to carry out these activities safely are largely maintained in the Regulations. For example, a holder responding to a request from a person planning to construct a facility near a power line needs to provide a written authorization for conducting the work.

Damage-prevention program and one-call centre membership

The Regulations require a holder to develop, implement and maintain a damage-prevention program. This program includes: public awareness elements and information needed to work safely near a power line; a process to ensure a timely response to locate requests; a process for locating and marking underground portions of a power line; and a process for managing requests for authorizations.

In conjunction with its damage prevention program, a holder must conduct inspections of its power line in accordance with the conditions set out in the authorizations, and keep a record of all construction of facilities across, on, along or under a power line and of all activities that cause a ground disturbance within the prescribed area. This includes inspecting any underground portion of a power line that is exposed to ensure that no damage to the power line has occurred, before backfilling over it.

The Regulations include the requirement for a holder to be a member of a one-call centre in the geographic area in Canada where it has its power line and where there is a one-call centre. A one-call centre is an organization that receives locate requests, and for each locate request received, it notifies its members that may be affected by any construction or ground disturbance activities that are the subject of the locate request. The Regulations require that a holder inform the public of the services of the one-call centre in the area through its damage prevention program.

The Regulations require a holder who receives a request to locate its power line to inform the person in writing of safety practices to be followed while working near a power line within three working days after the day on which the request is made, or any longer period agreed to by the holder and that person. The holder is required to mark the location of the underground portion of its power lines, using markings that are clearly visible and distinct from any other markings that may be in the vicinity of the proposed facility or the prescribed area. This three-day locate period is considered the standard across Canada for underground infrastructure.

Industry best practice is for holders to have programs for damage prevention, and to be a member of a one-call centre. The Regulations contain a requirement for the holder, beginning with the year 2021, to provide an annual report to the Regulator containing information regarding any contravention of the Reciprocal Regulations or damage to its power line, any concerns that the holder may have regarding the power line’s safety, security or reliability as a result of the constructions of the facility, the activity that causes a ground disturbance or the operation of vehicles or mobile equipment across the line, and any action the holder is taking to address the concerns with the power line.

Regulatory development

Consultation

Discussion paper with proposed concept for regulations — fall 2018

The discussion paper for early engagement was commenced under the National Energy Board (NEB), included a description of the structure for the new Regulations, and sought input on matters such as responding to requests for authorization, responding to locate requests, developing a damage prevention program and being a member of a one-call centre.

Notifications regarding the discussion paper were sent through Natural Resources Canada (NRCan) to a large group of stakeholders and to Indigenous footnote 1 groups and organizations on September 18, 2018. Notifications were again sent on October 19, 2018, when the discussion paper was posted on the NRCan website for comment (with the NEB website providing a link to this page). Recipients included Indigenous groups and organizations across Canada, holders, the electricity industry association, provincial and territorial jurisdictions, provincial regulators, landowners, landowner associations and other interested organizations including damage prevention organizations. The recipients also included Indigenous organizations, communities and individuals with an interest in power lines (e.g. previous intervenors in recent power line proceedings) and those living in the vicinity of power lines authorized under the NEB Act. The notifications included contact information for anyone seeking to address questions on the discussion paper.

The discussion paper was available for comment until November 28, 2018. During this period, several requests to meet on the proposed CER Act and the discussion paper were received from Indigenous organizations, provincial governments, the electricity industry association, an agricultural association, and the NEB-coordinated multi-stakeholder Land Matters Group (Land Matters Group), among other groups. NRCan and the NEB responded to all requests received. As part of the Government’s engagement on the legislation introducing the CER Act, information on the Regulations was also provided at several of the monthly open-call sessions that were held with Indigenous groups and organizations across the country.

In total, 10 submissions were received from holders, the electricity industry association, Indigenous organizations, agricultural associations, and professional surveyors. The discussion paper and the submissions received are posted on NRCan’s web page, A new Canadian Energy Regulator consultation.

Consultation paper with draft regulations — spring 2019

To meet the Government’s objective to implement the new impact assessment process by summer 2019, an exemption was granted from the regulatory policy requirement to publish draft regulations in Part I of the Canada Gazette to provide stakeholders with an opportunity to provide feedback on the regulatory details. In its place, a consultation paper with the draft proposed text for the Regulations was provided for comment between May 8, 2019, and June 7, 2019.

The consultation paper included a summary of how the comments received on the discussion paper were addressed in the development of the Regulations. The consultation paper contained the draft proposed Regulations for review and comment.

Notifications regarding the comment period were sent by NRCan to the same recipients who received the discussion paper in October 2018, as described above. The consultation paper was posted on NRCan’s web page, A new Canadian Energy Regulator; the NEB’s website provided a link to this page. The notifications provided contact information for anyone seeking to address questions on the consultation paper.

During the comment period, a request was received from the Land Matters Group for an overview of the consultation paper and the draft Regulations. An overview was provided, and questions related to how the Regulations would function were addressed.

In total, nine submissions were received — four from Indigenous communities and organizations, one from an agricultural association, two from holders, one from the electricity industry association, and one from a drilling company.

Summary of comments received

Submissions made during the comment periods for the discussion paper (October and November 2018) and the draft Regulations in the consultation paper (May and June 2019) were reviewed for the development of the Regulations. Generally, submissions supported the draft Regulations. A summary is provided below by topic area.

Holders responding to requests for conducting construction, activities and crossings

In comments on the consultation paper, industry commenters requested the inclusion of a requirement that a locate request must come from a person who has been authorized by the holder to construct a facility near a power line or to engage in an activity that causes a ground disturbance within the prescribed area. The locate request is a condition of the process for obtaining authorization from the holder. This is specified in the Reciprocal Regulations.

For crossings, industry commenters noted that, in general, power lines are installed taking into consideration that vehicle crossings may occur across the power line. Through the consultation, it was learned that some holders have agreements in place with landowners along a power line to not do anything that may interfere with the power line facilities or create a hazard.

Given the range of situations that may occur where power lines are located across Canada, the provisions in the draft Regulations (as set out in the consultation paper) for crossings are maintained in the Regulations; namely, operation of a vehicle or mobile equipment across a power line is authorized if the person intending to cross the power line obtains authorization from the holder. This is consistent with the requirement contained in subsection 58.31(2) of the NEB Act (and the parallel provision in subsection 273(2) of the CER Act), where operation of vehicle or mobile equipment across a power line must be authorized by the holder, other than in an area that is a travelled portion of a highway or public road.

The Reciprocal Regulations contain transitional clauses to capture leaves (authorizations) that were in place at the time that the Regulations come into force.

One-call centre requirements and damage prevention program

Comments submitted expressed support for the requirement for a holder to be a member of a one-call centre in the geographic area(s) across Canada where they have a power line, and where a one-call centre exists.

Through a damage prevention program, holders will meet the requirements for ongoing public awareness elements, and create a process to ensure a timely response to locate requests, a process for locating and marking any underground portions of a power line, and a process for managing authorization requests.

Modern treaty obligations and Indigenous engagement and consultation

The Regulations are not expected to impact the Section 35 rights of Indigenous peoples, modern treaties, or international human rights obligations.

The power line damage prevention provisions in the CER Act and the Regulations are focused on the safety of the public. This is an issue of significance, and there is a valid, compelling and substantial legislative objective in requiring all people, including Indigenous peoples, to seek authorization for these activities.

An assessment of modern treaty implications indicated that there is one modern treaty, the Treaty with the Tsawwassen First Nation, that overlaps with a constructed power line owned and operated by the BC Hydro and Power Authority. The Regulations do add more to the previous safety requirements in the legislation and related regulations but there have been no specific implications to modern Treaty obligations identified.

Instrument choice

The baseline scenario was not to have to update the PLCR, made under the NEB Act. However, the changes to the power line damage prevention provisions and the regulation-making authority introduced in the CER Act required that the PLCR be replaced, so the status quo was not a feasible option. The Regulations are considered the only option, and are required to maintain safety for anyone planning to construct a facility across, on, along or under a power line, engage in an activity that causes a ground disturbance within the prescribed area, or operate a vehicle or mobile equipment across a power line, unless in a travelled portion of a highway or public road.

Regulatory analysis

Benefits and costs

The Regulations apply to holders for power lines described in subsection 271(1) of the CER Act (previously subsection 58.303(1) of the NEB Act). The Regulations replace the PLCR for damage prevention, and the safety measures that were contained in those regulations are largely carried forward in the Regulations.

The Regulations maintain clarity for the requirements for safety and damage prevention by setting clear expectations for the holder regarding authorization of the construction of a facility near a power line, an activity that causes a ground disturbance within the prescribed area, or crossing a power line with a vehicle or mobile equipment (unless within the travelled portion of a highway or public road).

The total cost of the Regulations is expected to be $626,778 over 10 years, with an annualized cost of $89,239 or an estimated $2,412 per business.

Cost summary table
  Total Present Value Total Annualized Value
Quantitative impacts    
Costs Damage prevention programs $478,817 $68,172
Member of a one-call centre $3,177 $452
Preparing an annual report $144,784 $20,614
Total costs $626,778 $89,239

A description of the costs and qualitative benefits is provided below; these are estimated using the Treasury Board Secretariat’s Standard Cost Model.

Damage-prevention program

Holders provided comments on the requirements to have a damage prevention program at the concept and draft regulations stages. The holders requested a 12month period to meet the requirements in the Regulations for a damage-prevention program. This time period was included in the Regulations.

Formalizing the requirement for holders to have a damage prevention program will continue to enhance public awareness of the safety requirements for conducting activities near a power line.

It is estimated that approximately 65% of holders have a damage prevention program; these programs will need to be updated to reflect the changes in the CER Act to address the process for activities that cause a ground disturbance within the prescribed area, and the authorization required. In their comments, holders indicated that training would be required for staff in both utility operations and customer relations departments, and that external communications would need to be updated. It is estimated that these updates would require one management resource for three months to implement the program updates, training and communication related to the damage prevention program. The annualized cost for this requirement for the 65% of holders with an existing damage prevention program is estimated at $32,604, with the annualized cost per business estimated at $2,964.

It is estimated that approximately 35% of holders will need to develop or formalize a damage prevention program to meet the requirements in the Regulations, and provide related training and communication. It is estimated that this would require one management resource for six months. The annualized cost for this requirement is estimated at $35,568, with the annualized cost per business estimated at $5,928.

Member of a one-call centre

Requiring holders to register with one-call centres where they exist in the area of a power line supports effective sharing of information between holders with underground infrastructure, one-call centres and the public.

Holder membership in one-call centres has been the industry best practice across Canada. The majority of holders are members of a one-call centre; it is estimated that approximately 18% will need to become a member as required in the Regulations. The cost of a one-time fee to become a member, for those not yet members, is estimated to be an average of $300 per membership, depending on the province in which the power line is located. It is expected to take approximately one week’s work to provide the relevant information to the one-call centre. The annualized cost for this requirement is estimated at $452, with the annualized cost per business estimated at $151.

Preparing an annual report for submission to the Regulator

The Regulations contain a new requirement for the holder to provide an annual report to the Regulator with information about any contravention to the Reciprocal Regulations or damage to its power lines; any concerns that the holder may have regarding the power line’s safety, security or reliability as a result of the constructions of the facility, the activity that causes a ground disturbance, or the operation of vehicles or mobile equipment across the line; and any action the holder is taking to address the concerns with their power lines. This is necessary to provide essential information to the Regulator for compliance monitoring and to ensure safety when activities are conducted near power lines.

It is estimated that collating the data for the annual report would require half a day a quarter, and preparing the report would require two days at the end of the year. The annualized cost for this ongoing requirement, across all holders, is estimated at $20,614, with the annualized cost per business estimated at $1,213.

For this requirement, in response to holder comments, the Regulations were streamlined to require the report on an annual basis, to align with existing annual reporting.

As was the case under the NEB Act, under the CER Act, any holder may seek an exemption from regulatory requirements. Under the CER Act, the Commission may exempt a person from the application of a regulation made under section 275 (CER Act subsection 276(2)), or exempt holders, on any conditions that the Commission considers appropriate, from any or all provisions of a regulation made under section 96 (CER Act section 97).

The Regulations do not negatively impact the ability of small business to conduct business within Canada or maintain a successful workforce.

Small business lens

There are currently no small businesses to which the Regulations apply.

One-for-one rule

The one-for-one rule applies to the Regulations. The power line damage-prevention provisions and regulation-making authority in the CER Act require the repeal of the PLCR to be replaced with the International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates (the Regulations); therefore, there is no increase in titles.

Based on the Treasury Board Secretariat’s standard cost model, submission of the annual report, as described above, is estimated to have an annualized administrative cost of $11,998 across all holders and of $324 per business.

Regulatory cooperation and alignment

The Regulations align with damage prevention provisions and practices in other jurisdictions in Canada. Requirements for power lines under provincial jurisdiction also provide defined areas around power lines that establish safe distances for activities. Preapproval is generally required in other jurisdictions when anyone is planning to conduct work near or under a power line, or cross a line with machinery or vehicles.

Membership in one-call centres is an accepted practice across Canada for regulated industry or other entities whose facilities include underground infrastructure. The Ontario Underground Infrastructure Notification System Act, 2012 requires all persons or entities to whom the Act pertains to be a member of Ontario One Call.

The Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the Regulations.

Rationale

The Regulations are aligned with the damage prevention provisions and regulation-making authorities in the CER Act.

The Regulations and the Reciprocal Regulations together set out safety measures and the authorization framework to be followed when anyone is planning to construct a facility across, on, along or under a power line; engage in an activity that causes a ground disturbance within the prescribed area; or operate a vehicle or mobile equipment across a power line, unless in a travelled portion of a highway or public road.

The Regulations formalize accepted best practices, such as having a damage prevention program and membership in one-call centres in the geographic area where a holder has a power line.

Implementation, compliance and enforcement, and service standards

The Regulations come into force on the day on which they are registered.

Under the CER Act, the Regulator will enforce regulatory requirements to obtain compliance, deter future non-compliance, and prevent harm by using the most appropriate tools available. The Regulator has trained and qualified damage prevention inspection officers and enforcement personnel, and existing regulatory oversight programs. The Regulator will perform inspections and audits on a risk-informed basis. There are no new service standards created by the Regulations.

The Regulator will use a series of compliance and enforcement tools, including audits and inspections, compliance meetings, notices of non-compliance, and orders to encourage compliance with the Regulations to minimize infractions related to safety and damage prevention. Each case will be examined on an individual basis to determine the best course of enforcement to make sure damage prevention and safety requirements are followed.

Contacts

Chantal Briand
Regulatory Policy Team
Canadian Energy Regulator
517 Tenth Avenue SW, Suite 210
Calgary, Alberta
T2R 0A8
Email: chantal.briand@cer-rec.gc.ca

Shannon Neufeld
Technical Leader, Damage Prevention
Canadian Energy Regulator
517 Tenth Avenue SW, Suite 210
Calgary, Alberta
T2R 0A8
Email: shannon.neufeld@cer-rec.gc.ca
Email: DPinfo@cer-rec.gc.ca

Toll-free telephone: 1‑800‑899‑1265
Toll-free fax: 1‑877‑288‑8803
TTY (teletype): 1‑800‑632‑1663