Goal oriented

The proposed Regulations have been written in a goal-oriented style that includes prescriptive, goal-based and/or performance-based elements. Prescriptive regulation dictates the means by which compliance is achieved and may include what is to be done, by whom and how it is to be accomplished. Goal- or performance-based regulation sets regulatory goals or performance objectives to be achieved and allows companies to identify the means to meet them.

As an example, in the goal-based section 4, the proposed objective of the company’s damage prevention program is clearly stated as “anticipating and preventing damage to its pipeline.” In a more prescriptive style, paragraphs 4(a) through 4(d) list the elements of the program that would be required, such as ongoing public awareness, monitoring of land use and management of vehicles and mobile equipment across the pipeline. Using a combination of styles provides regulatory clarity while allowing a pipeline company the flexibility to develop a program that best suits its particular circumstances. The goal-oriented style also accommodates future advances in damage prevention and allows for the timely incorporation of best practices by a pipeline company.

Safety zone

The NEB Act restricts excavations with power-operated equipment or explosives within 30 m of a pipeline. The proposed Regulations would include a definition of “safety zone” consisting of an area extending 30 m perpendicularly from the centre line of a pipe on either side of the pipe.

The purpose of the safety zone is to protect the pipeline from accidental damage from activities such as excavations with power-operated equipment or explosives and provide for the safety of all persons living or working near the pipeline.

The proposed definition would address known challenges with the terms “pipeline”, “pipe” and right of way and provide consistency in how the safety zone is measured.

Ground disturbance

The proposed Regulations would restrict any person from undertaking a ground disturbance within 3 m of a buried pipe unless the conditions set out in paragraphs 7(1)(a) and (b) have been met.

This new provision would reflect the evolution of damage prevention and the need to address threats associated with ground disturbance. Restrictions related to excavations with power-operated equipment or explosives within 30 m of the pipeline, construction across, on, along or under the pipeline and crossings with vehicle or mobile equipment are set out in the NEB Act. In assessing the potential for activities not captured by the NEB Act to cause damage to the pipeline and associated facilities, it was determined that only those in close proximity to the pipe would have the potential to cause damage. Accordingly, this proposed provision would apply only to the area within 3 m of the centre line of the pipe.

One-call centre

The proposed Regulations would require a pipeline company to be a member of a one-call centre if it has a pipeline within a geographical area where a one-call centre exists (section 3). A one-call centre is an organization that coordinates requests for locating buried utilities, advises the caller of its member companies’ buried utilities in the area of the proposed activity and notifies its member companies of proposed activities.

Membership in one-call centres was recommended by the pipeline industry as a key method to prevent accidental damage to buried pipelines. Many companies are currently members of one-call centres.

Programs

The proposed Regulations would require a pipeline company to develop, implement and maintain a damage prevention program with elements that include public awareness, ongoing monitoring of land use, monitoring of any change in the ownership of the land in which the pipeline is located and the management of the movement of vehicles and mobile equipment across the pipeline (section 4).

The proposed Regulations would require a pipeline company to develop, implement and maintain an audit program for the purpose of verifying compliance with the proposed Regulations (section 11). Through audits, pipeline companies would evaluate their compliance performance against the regulatory objectives, take corrective actions, update procedures as necessary, have clear responsibilities and accountabilities, and have clear internal and external communications. Regular audits promote continual improvement of safety and environmental protection performance.

Standards for locates

The proposed Regulations would require a pipeline company to develop, implement and maintain standards for locating pipelines (sections 5 and 6). Implementation of standards and qualified and competent locators would promote planned, consistent and accurate means to locate facilities prior to excavation and ground disturbance.

Other updated requirements

The proposed Regulations set out when requests for locates of a pipeline must be made and associated timelines (sections 8, 17 and 18). The proposed Regulations would also require a pipeline company to investigate conditions, activities, actions or omissions that could cause damage to its pipeline, and submit a copy of the investigation report to the NEB (section 9).

The proposed Regulations also specify circumstances under which obtaining leave under the NEB Act would not be required, including carrying a pipeline across a utility other than a navigable waterway or a railway; construction of a facility across, on, along or under a pipeline; and excavations using power-operated equipment or explosives within the safety zone (sections 12, 13 and 16, respectively).

Consultation

The NEB has carried out extensive stakeholder consultation on the proposed Regulations. Project information including draft regulations, draft guidelines, regular updates and stakeholder comments received has been made available to the public on the NEB Web site.

In 1999, the NEB began a review of the Pipeline Crossing Regulations, first proposing a name change to reflect a focus on preventing damage rather than crossing activities.

In 2001, the NEB undertook a survey of approximately 350 interested companies, groups and individuals to obtain feedback on what should or could be included in the proposed Regulations. In the surveys returned, more than 80% of respondents indicated strong support for a number of damage prevention activities including: one-call centres, accuracy requirements for location of pipelines, development of minimum qualifications for pipeline locators, and the development of standards for awareness programs.

In May 2002, the NEB released A Conceptual Draft of the Proposed National Energy Board Damage Prevention Regulations and Guidance Notes (the Conceptual Draft) and conducted extensive stakeholder engagement for the next 12 months. Meetings with groups of interested stakeholders in the prevention of damage to underground infrastructure were held in Halifax, Nova Scotia; Saint John, New Brunswick; Calgary, Alberta; Vancouver, British Columbia; Regina, Saskatchewan; London, Ontario; Toronto, Ontario; and Montréal, Quebec. Over 150 professionals representing underground utilities, landowners, municipalities and pipeline companies participated. In addition, the NEB held public meetings or “open houses” in New Glasgow, Nova Scotia; Hardisty, Alberta; Regina, Saskatchewan; Kingston, Ontario; and Vaudreuil, Quebec. Interested stakeholders were provided with the opportunity to learn about the proposed Regulations and discuss the content of the Conceptual Draft. More than 250 persons attended.

Written comments on the Conceptual Draft were provided by a number of interested stakeholders, including pipeline companies and industry associations, one-call centres, various municipal and provincial authorities and contractor associations. Through the survey and initial stakeholder engagement process, several key elements to be included in the proposed Regulations were identified: one-call centres, accuracy requirements for location of pipelines, development of minimum qualifications for pipeline locators and the development of standards for awareness programs.

In October 2003, the NEB released Draft Guidance Notes for the National Energy Board Damage Prevention Regulations (Guidance Notes) for comment. This document included proposed text of the Regulations and incorporated many of the suggestions and comments provided through the consultation process. Consultation on the Guidance Notes was conducted through focus meetings in Montréal, Quebec; Saint John, New Brunswick; Halifax, Nova Scotia; Toronto, Ontario; and Winnipeg, Manitoba; as well as at venues such as the December 2003 NEB Workshop in Calgary, Alberta.

In February 2005, the NEB released a package consisting of a cover letter, draft National Energy Board Damage Prevention Regulations (October 2004) and Frequently Asked Questions. The package was posted on the NEB Web site and provided directly to pipeline companies, industry associations, interested stakeholders and potentially interested stakeholders.

Between 2005 and 2009, work on the proposed Regulations continued. In a parallel process, the NEB conducted a Land Matter Consultation Initiative and held meetings across Canada. As part of this initiative, in 2008 the NEB indicated its intention to incorporate into the proposed Regulations a requirement for companies to have a program in place to manage the movement of vehicles and mobile equipment across the pipeline.

In 2009, the NEB carried out another round of stakeholder engagement. An updated Proposed Damage Prevention Regulations and Draft Guidance Notes, February 2009 (the 2009 DPR and Draft Guidance Notes) was released on February 9, 2009, with a 10-week public comment period. Nineteen interested stakeholders provided written comments.

During this period, the NEB offered to meet with interested stakeholders to present the proposed Regulations, answer questions and hear comments. Meetings with the Canadian Energy Pipeline Association (CEPA), the Union des producteurs agricoles (UPA) and the Canadian Association of Pipeline Producers (CAPP) were held. In July 2009, a further meeting was held with CEPA, UPA, Canadian Association of Pipeline and Utility Locating Contractors, Trans-Northern Pipelines Inc., Alberta Hotline Inc., Alberta One-Call Corporation, Montreal Pipe Line Limited, Enbridge Pipelines Inc., Kinder Morgan Canada Inc., and Advanced Locating Services to work towards a better understanding of the proposed Regulations and discuss concerns that had been raised.

Numerous stakeholders participated in meetings and submitted written comments. Generally, there was support for the shift to a goal-oriented style of regulation and for participation in one-call centres.

Issues raised and discussed during the stakeholder consultation process included the perceived restriction on the use of land within the right of way and safety zone, the introduction of new terminology (safety zone, ground disturbance), the proposed requirement to develop standards for locates; the perceived loss of company control to supervise, direct, monitor or suspend third-party activities and the proposed service standards related to requests for locates.

Modifications were made to the proposed Regulations in response to stakeholders’ comments throughout the consultation process. There were a number of issues related to the NEB Act that could not be addressed by the proposed Regulations, including the requirement to obtain leave from pipeline companies to cross pipelines, certain terminology and the absence of enforcement mechanisms such as fines.

Implementation, enforcement and service standards

Under the NEB Act, the NEB is responsible for ensuring compliance with and enforcement of the existing regulations and would be responsible for the proposed Regulations. Compliance and enforcement provisions exist under the NEB Act and no change to compliance and enforcement authorities or responsibilties would result from the proposal. The NEB has trained and qualified Damage Prevention Inspectors and enforcement personnel and existing regulatory oversight programs. Compliance and enforcement activities would be funded through existing programs including existing cost recovery structures. The NEB has developed a plan to implement the proposed Regulations, manage information obtained through reporting requirements and inspection and audit activities and engage key stakeholders about damage prevention.

The proposed Regulations would impose three sets of service standards. Sections 8 and 18 of the proposed Regulations would impose a three-working day service standard on persons and the pipeline company related to locate requests. Section 14 would impose a 10-working day service standard on the pipeline company to enter into, or refuse, a request to enter into an agreement to construct a facility across, on, along or under a pipeline. Finally, paragraph 16(1)(d) of the proposed Regulations would specify that leave under the NEB Act is not required for excavations within the safety zone if not more than 30 days have elapsed after the date of the locate report. The service standard set out in subsections 8(3), 14(3) and 18(2) may be extended by mutual agreement.

Performance measurement and evaluation

The purpose of the proposed Regulations is to impose requirements related to prevention of damage to pipelines to provide for the protection of property and the environment, and the safety of the public and of the company’s employees.

In evaluating performance, the NEB will consider information from

• inspections and audits of company activities, facilities and programs;
• incident reports and investigations, including contributing factors and recommendations;
• investigation reports submitted pursuant to section 10 of the proposed Regulations;
• records of unauthorized activities, including tracking frequency, type of violation, geographic area and stakeholders involved;
• continued active participation on both provincial and federal Common Ground Alliances which are working towards the development of national best practices for the protection of buried infrastructure and a national one-call system; and
• direct communication with persons subject to the proposed Regulations.

Locates

(2) Within three working days after the day on which the locate request is received, the pipeline company shall, at no cost to the person requesting the locate,

(a) determine if the ground disturbance has the potential to damage the pipe or associated facilities;

(b) locate the pipe and associated facilities and place surface markings to identify the horizontal alignment of that pipe and those facilities to within plus or minus 0.6 m; and

(c) make a locate report that includes

(i) a sketch showing the horizontal alignment of the located pipe and associated facilities and, if possible, showing their approximate position relative to readily identifiable objects, and

(ii) sufficient information to enable the person undertaking the ground disturbance to understand the actions and duties necessary for the prevention of damage to the pipe or associated facilities.

Extending period

(3) The period prescribed in subsection (2) may be extended by mutual agreement between the person making the locate request and the pipeline company.

Exception

(4) The pipeline company is not required to undertake the activities prescribed in subsection (2) if the ground disturbance does not have the potential to damage the pipe and associated facilities.

Date of locate report

(5) The locator shall date the locate report.

Investigation

9. When a pipeline company becomes aware of conditions, activities, actions or omissions that might reasonably be expected to cause damage to its pipeline or that might jeopardize the safety of the public or the company’s employees in the construction, operation or abandonment of the pipeline, it shall investigate the conditions, activities, actions or omissions and maintain a record of the results of the investigation.

Report to Board

10. The pipeline company shall immediately report to the Board in writing the results of the investigation if it concludes that the conditions, activities, actions or omissions have caused damage to the pipeline or have jeopardized the safety of the public or the company’s employees in the construction, operation or abandonment of the pipeline.

Audit program

11. The pipeline company shall develop, implement and maintain an audit program for the purpose of verifying compliance with these Regulations.

CIRCUMSTANCES IN WHICH OR CONDITIONS UNDER WHICH LEAVE OF THE BOARD IS NOT NECESSARY

LEAVE UNDER SECTION 108 OF THE ACT

Crossing utility

12. Leave of the Board under section 108 of the Act is not necessary to carry a pipeline across a utility other than a navigable waterway or a railway if the terms for the pipeline’s construction have been set out in a written agreement between the pipeline company and the owner of the utility.

LEAVE UNDER SUBSECTION 112(1) OF THE ACT

Construction across, on, along or under pipeline

13. Leave of the Board under subsection 112(1) of the Act is not necessary for the construction of a facility across, on, along or under a pipeline if the terms for the construction have been set out in a written agreement between the pipeline company and the person planning the construction.

Response to request

14. (1) If a request for an agreement referred to in section 13 is made, the pipeline company shall enter or refuse to enter into the agreement within 10 working days after the day on which the request is received.

Date of receipt of request

(2) The date of the request is the day on which the person making the request gives information to the pipeline company that allows it to adequately evaluate the request.

Extending period

(3) The period prescribed in subsection (1) may be extended by mutual agreement between the person making the request and the pipeline company.

Refusal by pipeline company

(4) If the pipeline company refuses to enter into the agreement, it shall immediately provide the Board and the person making the request with the reasons for the refusal in writing and shall inform that person of their right to seek leave from the Board for the construction of a facility under subsection 112(1) of the Act.

Excavations outside safety zone

15. Leave of the Board under subsection 112(1) of the Act is not necessary for excavations outside the safety zone if the excavations do not have the potential to damage the pipeline.

Excavations within safety zone

16. (1) Subject to subsection (2), leave of the Board under subsection 112(1) of the Act is not necessary for excavations within the safety zone if

(a) a locate request has been made in accordance with section 17;

(b) the pipeline company and the locator have complied with section 18;

(c) the surface markings identify the location of the pipe and associated facilities;

(d) not more than 30 days have elapsed after the date of the locate report; and

(e) in the case of excavations within 3 m of the centre line of a buried pipe, the location of the pipe has been determined by exposing it in the presence of the pipeline company’s representative in a manner that does not have the potential to damage the pipe or associated facilities.

Assessed excavations

(2) Leave of the Board under subsection 112(1) of the Act is not necessary for excavations within the safety zone that have been assessed by the pipeline company and do not have the potential to damage the pipe or associated facilities.

Record of assessed excavations

(3) The pipeline company shall create and maintain a record of the excavations that it has assessed and that do not have the potential to damage the pipe or associated facilities.

Locate request for excavations

17. The locate request shall be made to the pipeline company, at least three working days before the day on which the excavation is to start,

(a) through a one-call centre if the pipe is within an area where the one-call centre co-ordinates requests for locates; and

(b) through the pipeline company directly if a one-call centre does not exist in that area.

Locates

18. (1) Within three working days after the day on which the locate request is received, the pipeline company shall, at no cost to the person requesting the locate,

(a) determine if the excavation has the potential to damage the pipe or associated facilities in the safety zone;

(b) locate the pipe and associated facilities and place surface markings to identify the horizontal alignment of that pipe and those facilities to within plus or minus 0.6 m; and

(c) make a locate report that includes

(i) a sketch showing the horizontal alignment of the located pipe and associated facilities and, if possible, showing their approximate position relative to readily identifiable objects, and

(ii) sufficient information to enable the person undertaking the excavation to understand the actions and duties necessary for the prevention of damage to the pipe or associated facilities.

Extending period

(2) The period prescribed in subsection (1) may be extended by mutual agreement between the person making the locate request and the pipeline company.

Date of locate report

(3) The locator shall date the locate report.

LEAVE UNDER SUBSECTION 112(2) OF THE ACT

Operation of vehicles or mobile equipment across pipeline

19. Leave under subsection 112(2) of the Act is not necessary for the operation of a vehicle or mobile equipment across a pipeline if the pipeline company has assessed the operation and if the operation does not have the potential to damage the pipeline.

REPEALS

Repeal