SOR/2016-124: National Energy Board Pipeline Damage Prevention Regulations – Authorizations National Energy Board Act
REGISTRATION OF FEDERAL REGULATION - VIA PART II OF THE GAZETTE
June 8, 2016
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 R... (Click for more)
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Published on June 8, 2016
SOR/2016-124: National Energy Board Pipeline Damage Prevention Regulations – Authorizations National Energy Board Act
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: [email protected] Footnote a S.C. 2015, c. 21, s. 34(2) Footnote b S.C. 2015, c. 21, s. 34(3) Footnote c R.S., c. N-7 Footnote 1 SOR/88-528
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