Written by Marie Buchinski and Colm Boyle
On August 28, 2019, the Canadian Energy Regulator Act (CERA) came into force, repealing the National Energy Board Act (NEBA). Through the CERA, the National Energy Board became the Canada Energy Regulator.
The Regulator has made a number of housekeeping changes to existing regulations, including updating references of the "National Energy Board" to the "Canada Energy Regulator”. In addition to these housekeeping amendments, substantive changes have been made to Section 6 of the Onshore Pipeline Regulations, and two new regulations have been enacted to address damage prevention for international and interprovincial power lines.
Federally regulated pipeline and power line owners and operators should be aware of these regulatory changes, and how the regulatory changes may impact them.
Canadian Energy Regulator Onshore Pipeline Regulations (OPR)
Several amendments were made to the OPR, particularly in relation to management systems and management system processes. Important changes include the following:
- Purpose: Section 6 now delineates this section as "the purpose" of the OPR. Section 6 states that the purpose of the OPR is to require and enable a company to design, construct, operate and abandon a pipeline in a manner that ensures the safety and security of persons, pipelines and abandoned pipelines, and that ensures the protection of property and the environment.
- 90 days to implement management systems: While the OPR previously required that companies have a management system in place, Subsection 6.1(2) now requires a company to establish its management system within 90 days after the day on which the certificate or order authorizing it to construct or operate a pipeline is issued under the CERA.
- Policies and Goals: Subsection 6.3(1) requires that a company establish documented policies and goals. Subsection 6.3(1)(a) specifically requires policies and goals for reporting of hazards, potential hazards, incidents and near-misses, that includes circumstances under which a person who makes a report will be immune from disciplinary action. This subsection of the OPR now makes specific reference to the Canada Labour Code, clarifying that the circumstances for immunity from disciplinary action in a company’s internal reporting policy are in addition to the circumstances set out in the Canada Labour Code. This revision confirms that employees’ rights and immunities are a matter of the Canada Labour Code, and are not determined by company policy.
- Annual Reports: Subsection 6.6(1)(b) now requires a company to describe in its annual report the adequacy and effectiveness of the company’s management system. The company is required to evaluate its management system under the process that it has established and implemented under subsection 6.5(1)(v) of the OPR, which requires that the company not only implement a process to evaluate the adequacy and effectiveness of its management system, but also to monitor, measure and document its performance in meeting its obligations under the OPR.
In sum, a federally regulated pipeline company now has 90 days following issuance of a certificate or order to implement its management system. The revisions to the OPR also provide clarity for a company’s internal reporting policies, and expand the scope of the annual report that companies are required to complete under the OPR.
International and Interprovincial Power Line Damage Prevention Regulations
Before CERA, the Power Line Crossing Regulations (PLCR) governed the safety of certain activities in proximity to federally regulated power lines. When the Regulator identified that the PLCR needed to be replaced, it issued Authorizations Order MO-040-2019 and Obligations Order MO-041-2019 as interim measures to ensure the safety and security of persons and of power lines, and the protection of property and the environment, before new regulations could come into force.
The Orders have been revoked and the PLCR has been replaced by two regulations, namely the International and Interprovincial Power Line Damage Prevention Regulations — Authorizations and the International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates (together, the PLDPRs). The PLDPRs appear to be largely modelled after regulations already in place for pipeline damage prevention, specifically the Canadian Energy Regulator Pipeline Damage Prevention Regulations – Authorizations and the Canadian Energy Regulator Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies.
The PLDPRs set out the safety measures and authorization framework for power line damage prevention. The PLDPRs apply broadly to:
- holders of international and interprovincial power line permits and certificates;
- persons proposing to construct a facility across, on, along, or under a power line;
- activities that cause ground disturbance in a prescribed area;
- operation of a vehicle or mobile equipment across a power line; and
- persons proposing to construct certain international or interprovincial power lines that pass on, over, along or under a facility.
The PLDPRs also set out the regulatory requirements that must be met by persons intending to construct a facility across, on, along or under an international or interprovincial power line or intending to engage in an activity that causes a ground disturbance within a prescribed area. These requirements include making a locate request prior to the start of construction or the activity and obtaining the written authorization of the entity that holds the power line permit or certificate. Authorization from the entity that holds the permit or certificate is also required if a person intends to operate a vehicle or mobile equipment across the power line. Persons that intend to construct an international or interprovincial power line on, over, along or under a facility must meet the regulatory requirements set out in the PLDPRs, which include obtaining written permission from the owner of the facility.
A holder of a power line permit or certificate is required to meet the regulatory requirements of the PLDPRs, which include:
- being a member of a one-call centre if there is a one-call centre in the geographic area in Canada where its power line is operated;
- responding to locate requests;
- conducting inspections of its power line;
- keeping records of all construction across, on, along or under its power line and all activities that cause a ground disturbance within the prescribed area of its power line; and
- developing, implementing and maintaining a damage-prevention program that meets the requirements of the PLDPRs.
Depending on the circumstances, the PLDPRs require that the damage prevention program be in place within 12 months after the day on which the power line permit or certificate is issued, within 12 months of March 16, 2020, or within the time limit set out in the conditions of the certificate or permit. In addition, and commencing with the year 2021, holders of power line permits and certificates are now required to provide a written report to the Regulator by January 31 of each year, that includes details of contraventions of the PLDPRs and of damage to its power lines.
Should have you have questions on how these regulations affect you or your operations, please contact the Bennett Jones Regulatory group.