ARCHIVED – Questions and Answers: National Energy Board Proposed Regulations for Pipeline Damage Prevention

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30 Day Comment Period for National Energy Board Proposed Regulations for Pipeline Damage Prevention in Canada Gazette, Part I - 19 March to 18 April 2016

  1. Why is the National Energy Board (NEB or Board) amending its regulations for pipeline damage prevention?
  2. What are the new terms that the Pipeline Safety Act introduces to the NEB’s regulations for damage prevention?
  3. What are key changes in the proposed regulations?
  4. How is the prescribed area defined?
  5. What are the requirements for the construction of a facility near an NEB-regulated pipeline?
  6. What are the requirements for crossing a NEB-regulated pipeline when operating a vehicle or mobile equipment?
  7. What are the requirements for NEB-regulated pipeline companies?
  8. What will happen if I already have an existing permission from the Board or the NEB-regulated pipeline company to construct a facility near a pipeline, to excavate using power equipment or explosives within 30 metres of a pipeline, or to cross a pipeline when operating a vehicle or mobile equipment?
  9. What if I can’t obtain NEB-regulated pipeline company consent to undertake an activity near a pipeline?
  10. What is included in the proposed regulations from the previously proposed amendments?
  11. How can I comment on the proposed regulations?

Q1. Why is the National Energy Board (NEB or Board) amending its regulations for pipeline damage prevention?

The Pipeline Safety Act received royal assent on 18 June 2015, and the Pipeline Safety Act amendments to the National Energy Board Act (NEB Act) will be in force within one year of that date. Due to these amendments to the NEB Act, the NEB must update its regulations for pipeline damage prevention. As well, the proposed regulations contain amendments previously proposed in 2014. For a detailed description of the changes in the proposed regulations, please review the accompanying Regulatory Impact Analysis Statement in the Canada Gazette, Part I.

The proposal includes the following regulations:

  • National Energy Board Pipeline Damage Prevention Regulations - Authorizations
    • Will replace the National Energy Board Pipeline Crossing Regulations, Part I
  • National Energy Board Pipeline Damage Prevention Regulations - Obligations of Pipeline Companies
    • Will replace the National Energy Board Pipeline Crossing Regulations, Part II
  • Regulations Amending the National Energy Board Onshore Pipeline Regulations
    • Will amend the existing National Energy Board Onshore Pipeline Regulations
  • Regulations Amending the Administrative Monetary Penalties Regulations (National Energy Board)
    • Will amend the existing Administrative Monetary Penalties Regulations (National Energy Board)

Q2. What are the new terms that the Pipeline Safety Act introduces to the NEB’s regulations for damage prevention?

1. The Pipeline Safety Act introduces the term ground disturbance. References to excavating using power equipment or explosives within 30 metres of the pipeline, are replaced with references to ground disturbance within the prescribed area. The Pipeline Safety Act provides that it is prohibited for a person to engage in activity that causes ground disturbance within the prescribed area, unless the activity is authorized by order or regulations.

The Pipeline Safety Act provides that the following are not considered ground disturbance:

  • Cultivation to a depth of less than 45 cm below the surface of the ground, or
  • Any other activity to a depth of less than 30 cm and that does not result in reduction of the earth cover over the pipeline to a depth that is less than the cover provided when the pipeline was constructed.

2. The Pipeline Safety Act introduces the term prescribed area, which is the area near the pipeline where activity causing ground disturbance is prohibited, unless the activity is authorized by order or regulations. The Pipeline Safety Act provides that the NEB may set out the prescribed area in regulations or orders.

The prohibition against activities causing ground disturbance within the prescribed area in the Pipeline Safety Act provides clarity to ensure safety and protection of the environment.

Q3. What are key changes in the proposed regulations?

Highlights of the changes to the proposed regulations include:

  1. Requiring pipeline companies to be members of one-call centres, where they exist in a province, and for third parties to contact the one-call centre before they plan an activity around a pipeline.
  2. Requiring pipeline companies to have a damage prevention program within their management systems. The damage prevention program includes requirements for NEB-regulated pipeline companies to: have a public awareness program; monitor any changes in the use of the land use on which a pipeline is located and any changes in the landowner of land on which a pipeline is located; and have standards and processes for managing activity requests and locates.
  3. Providing the “prescribed area”, which is the area near the pipeline where activity causing ground disturbance is prohibited, unless the activity is authorized by order or regulations. If consent cannot be obtained from the NEB-regulated pipeline company, or the measures in the regulations cannot be met, the process in the proposed regulations continues to be, as it is in the current regulatory regime, that the person could apply to the Board for an authorization to conduct the activity.
  4. Aligning the structure of the regulations to incorporate the ground disturbance and prescribed area requirements in the Pipeline Safety Act. The proposed regulations largely maintain the existing conditions and measures required for anyone planning construction or activity near a pipeline, or crossing it with a vehicle or mobile equipment.

Q4. How is the prescribed area defined?

The proposed regulations define the prescribed area as as a strip of land measured 30 metres perpendicularly on each side from the centreline of a pipe. This distance can be accurately measured, providing a measureable distance from a known point on a pipe.

Q5. What are the requirements for the construction of a facility near an NEB-regulated pipeline?

The requirements contained in the current regulations have been largely maintained in the proposed regulations for construction activities near an NEB-regulated pipeline. For example, in order to construct a facility, a person planning to construct a facility near a pipeline would still need to:

  • obtain written consent from the NEB-regulated 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 NEB-regulated pipeline company; and
  • comply with all the instructions of an authorized field representative of the pipeline company.

Q6. What are the requirements for crossing a NEB-regulated pipeline when operating a vehicle or mobile equipment?

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. The Pipeline Safety Act amends the NEB Act to prohibit crossing a pipeline by vehicle or mobile equipment, unless authorized by a Board order or regulations, or the vehicle or mobile equipment is operated within the travelled portion of a highway or public road.

The proposed regulations provide that a crossing is authorized if the person that intends to operate the vehicle or mobile equipment across the pipeline obtains the pipeline company’s written consent.

The proposed regulations also incorporate the intent of the NEB’s Exemption Order Respecting Crossings by Agricultural Vehicles or Mobile Equipment MO-21-2010 (low risk crossings by agricultural vehicles). 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 will also be subject to the requirements related to activities causing ground disturbances, if applicable.

Q7. What are the requirements for NEB-regulated pipeline companies?

The NEB’s current pipeline damage prevention regulations provide that the regulations do not apply to excavation caused by an NEB-regulated pipeline company. The proposed regulations include specific requirements for pipeline companies planning 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 of a facility; and, if it is not the company’s pipeline, the pipeline must be marked and the markings explained to the company intending to carry out the construction or activity.

Q8. What will happen if I already have an existing permission from the Board or the NEB-regulated pipeline company to construct a facility near a pipeline, to excavate using power equipment or explosives within 30 metres of a pipeline, or to cross a pipeline when operating a vehicle or mobile equipment?

The proposed regulations contain transitional clauses to capture existing permissions and orders related to construction of a facility near a pipeline, excavation using power equipment or explosives within 30 metres of a pipeline, and crossings by vehicle or mobile equipment. This is done to allow the activities to continue under the existing permission.

Q9. What if I can’t obtain NEB-regulated pipeline company consent to undertake an activity near a pipeline?

For any of the situations described in the proposed regulations (i.e., for a person planning to engage in an activity that may cause a ground disturbance, or construct a facility, or operate a vehicle or mobile equipment across a pipeline), if consent cannot be obtained from the NEB-regulated pipeline company, or the measures in the regulations cannot be met, the process in the proposed regulations continues to be, as it is in the current regulatory regime, that the person could apply to the Board for an authorization to conduct the activity.

Q10. What is included in the proposed regulations from the previously proposed amendments?

The previously proposed amendments, introduced in 2014 prior to the Pipeline Safety Act, that are included in the proposed regulations are:

  1. the requirement for NEB-regulated pipeline companies to be members of one-call centres in the geographic areas across Canada where they operate pipelines;
  2. the requirement for third parties to initiate a locate request through the nearest one-call centre where one exists for the geographical area in question;
  3. moving the intent of MO-21-2010 An Exemption Order Respecting Crossings by Agricultural Vehicles or Mobile Equipment into the regulations; and
  4. for NEB-regulated pipeline companies to have a formal damage prevention program within their management system. The damage prevention program includes requirements for NEB-regulated pipeline companies to: have a public awareness program; monitor any changes in the land use on which a pipeline is located and any changes in the landowners of land on which a pipeline is located; and have standards and processes for managing activity requests and locates.

Q11. How can I comment on the proposed regulations?

Comments on the proposed regulations must be provided in writing and be submitted by mail, fax or email by 18 April 2016. All comments submitted must cite the Canada Gazette, Part I, the date of publication (19 March 2016), and be addressed to:

  • Chantal Briand, Regulatory Approaches
    National Energy Board
    Suite 210, 517 Tenth Avenue S.W.
    Calgary, AB  T2R 0A8
    Facsimile 403-299-5503 or toll free: 1-877-288-8803
    Email: damagepreventionregs@neb-one.gc.ca

All comments received will be posted on the NEB’s website.

For other questions related to the NEB’s regulations for pipeline damage prevention, please contact Shannon Neufeld, Technical Leader, Damage Prevention, National Energy Board, at 403-299-2778 or 1-800-899-1265, or email: shannon.neufeld@neb-one.gc.ca.

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