The National Energy Board (NEB) is proposing to amend its regulations relating to damage prevention. The regulations that will be amended as a result of this initiative are the National Energy Board Pipeline Crossing Regulations, Part I (PCR Part I), the National Energy Board Pipeline Crossing Regulations, Part II (PCR Part II) and the Onshore Pipeline Regulations (OPR).
The regulatory proposal will clarify and improve provisions for damage prevention. It will:
- require pipeline companies to be members of one-call centers, where they exist in a province, and for third parties to contact the center before they plan an activity around a pipeline;
- require pipeline companies to have a damage program within their management systems; and
- promote effective and timely communication between someone planning an activity near a pipeline and the pipeline company.
The National Energy Board (NEB or Board) is an independent federal agency responsible for regulating pipelines, energy development and trade in the Canadian public interest. Under the National Energy Board Act (NEB Act) and its regulations, the NEB promotes safety and security, environmental protection and efficient energy infrastructure markets. The NEB regulates all aspects of pipeline activity for inter-provincial and international pipelines within Canada.
Experience has shown that many incidents involving pipelines are caused by construction and excavation activities. Unsafe practices during these activities can cause damage to pipelines and put the safety of people and the environment at risk. Pipeline safety is the Board’s top priority. The NEB will take all available actions to protect Canadians and the environment.
The responsibility to prevent pipeline damage is shared between anyone who plans to undertake construction or excavation near a pipeline and the pipeline company. Other parties with a key role in preventing damage include one-call centers, pipeline locators and regulators.
The NEB’s regulatory framework for damage prevention is designed to make sure companies and individuals are effective in managing safety and environmental protection when working near NEB-regulated pipelines (pipelines). The NEB’s compliance monitoring and enforcement activities support this framework and are used to promote compliance with requirements.
The purpose of this discussion paper is to describe proposed changes to improve and streamline NEB regulations for preventing damage to pipelines. Interested parties are invited to send comments in writing on or before Monday, 11 February 2013.
The changes described in this paper would necessitate amendments to the National Energy Board Pipeline Crossings Regulations, Part I (PCR Part 1); National Energy Board Pipeline Crossings Regulations, Part II (PCR Part 2) and Onshore Pipeline Regulations, 1999 (OPR-99).
In 2010, a proposed regulation for damage prevention was pre-published in the Canada Gazette, Part 1. In light of comments received, the Board decided not to proceed with the proposed regulation.
The Board is committed to continuous improvement of the regulatory framework and in 2012, released its Damage Prevention Framework Plan. This discussion paper advances the regulation development commitment made in that Plan.
The next section describes the current regulatory framework for damage prevention, followed by topics for discussion, proposed changes to the regulations and the NEB’s related questions.
2.0 Regulatory Framework for Damage Prevention
The NEB Act establishes the NEB’s mandate and regulation-making authority for damage prevention, among other things.
The NEB Act, regulations, orders and certificate conditions establish the requirements for NEB-regulated pipeline companies (pipeline companies) and any person planning or undertaking construction or excavation activities near pipelines. To achieve its regulatory goals for safety and environmental protection, the NEB’s regulatory approach uses a combination of both prescriptive and performance-based requirements.
The NEB also provides guidance about requirements and public information to promote living and working safely around pipelines and other buried infrastructure across Canada. Through outreach activities the NEB works to raise awareness about working safely around pipeline infrastructure, the rights and obligations of both pipeline companies and construction crews, and facts about pipeline right of ways.
2.1 National Energy Board Act
Two types of activities are restricted near pipelines (this includes the pipe and the right of way) unless permission from the Board is obtained first:
- construction of a facility across, on, along, or under a pipeline (construction), and
- excavation using power-operated equipment or explosives within 30 metres from the edge of the right of way (excavation). Subsection 112(1) of the NEB Act
The operation of a vehicle or mobile equipment across a pipeline is restricted unless permission from the pipeline company is obtained first, except within the travelled portion of a public road, or under the low risk conditions for crossings by agricultural vehicles in the Exemption Order MO-21-2010, described below.
 Subsection 112(2) of the NEB Act
2.2 Exemption Order MO-21-2010 (Low Risk Crossings by Agricultural Vehicles)
In December 2010, the Board issued Exemption Order MO-21-2010 ‘Respecting Crossings by Agricultural Vehicles or Mobile Equipment’ (Agricultural Crossing Order) [Document A1X2W0]. The Order sets the low-risk conditions for farming vehicles and equipment to cross NEB-regulated pipelines without the need for permission from the pipeline company. It requires pipeline companies to identify locations in agricultural areas where agricultural vehicle crossings would have potential to damage the pipeline, and to notify land users of those locations. For any such locations, the landowner or land user must contact the pipeline company to determine the specific crossing requirements.
The Board makes orders and regulations to establish the:
- measures which must be taken by any person in relation to construction and excavation, Subsection 112(5)(b) of the NEB Act
- circumstances and conditions when permission from the Board is not required for construction and excavation, Subsection 112(5)(c) of the NEB Act
- circumstances and conditions when permission from the pipeline company is not required to operate a vehicle or mobile equipment across a pipeline,and Subsection 112(5)(c) of the NEB Act
- requirements for pipeline companies regarding the design, construction, operation and abandonment of pipelines. Subsection 48(2) of the NEB Act; these regulations are made by the Board, with the approval of the Governor in Council.
The NEB has three regulations which relate to preventing damage to pipelines:
- The PCR Part 1 set requirements for third parties planning or undertaking construction and excavation near pipelines,
- The PCR Part 2 set requirements for pipeline companies to prevent damage to their pipelines, and
- The OPR-99 set requirements for pipeline companies regarding the design, construction, operation and abandonment of pipelines. Certain technical standards of the Canadian Standards Association are incorporated by reference into the OPR-99, including CSA Z662 ‘Oil and Gas Pipeline Systems’.
Any person planning construction or excavation needs to call before they dig to determine if a pipeline is in the area. Under the PCR Part 1, before starting these activities near a pipeline a person must first obtain written permission from the pipeline company, and if granted, provide at least 3 days notice before starting the construction or excavation.
 Paragraphs 4(b) and (f), and 6(b) and (f) of the PCR Part 1
Sometimes third parties do not request permission from the pipeline company before conducting activities near pipelines, as required by NEB regulations. The number of these unauthorized activities tends to be greater in areas with high density of development near pipelines. Pipeline companies are required to report to the Board any unauthorized activity near their pipeline.When the NEB receives a report of an unauthorized activity, the Board responds according to the level of risk of the activity and investigates the underlying causes of high risk activities. The NEB will enforce regulations, when necessary, to promote compliance and safe work practices. The NEB makes its enforcement actions public.
 Section 13 of the PCR Part 2
3.0 Topics for Discussion and Proposed Changes
The PCRs came into effect in 1988 and need to be updated. With the changes proposed below, the regulations would better reflect current industry practice; more clearly define key safety requirements and be more consistent with other NEB regulations.
Anyone who is planning construction or excavation activities near a pipeline needs to understand their responsibilities for preventing damage, the risks and consequences of unsafe work practices and where to get more information. Pipeline companies must have a rigorous program to proactively address risks from third party activities near pipelines, consistent with other safety and environmental protection programs required by the Board.
The topics for discussion, proposed changes to the regulations and related NEB questions are described in items 3.1 through 3.4 below.
3.1 Effective and Timely Communication – Call Before You Dig
When planning construction or excavation activities, a person must always call before they dig to promote safety and protect themselves and the environment. This key step allows a person to determine if a pipeline is located in the area of their planned construction or excavation activities.
When the PCRs came into effect in 1988, one-call centres were not yet established in Canada. More recently these centres have an increasingly important role in the damage prevention process. The PCRs should be clearer about how third parties are to contact a pipeline company to request a pipeline locate, with an explicit option to contact a one-call centre in areas where a centre is established.
The Board proposes to require:
- pipeline companies to be members of one-call centres, in geographical areas with a centre and where the company has a pipeline, and
- anyone planning construction or excavation near a pipeline to provide notice to the pipeline company and make a locate request by contacting a one-call centre where a centre is established, or the pipeline company.
Question 1: Should locate requests include the option of being made by contacting either a one-call centre OR the pipeline company? Why or why not?
3.2 Damage Prevention Programs with Management System Approach
Under the PCR Part 2, pipeline companies must have a public awareness program to inform the public of the presence of the pipeline and the public’s responsibilities regarding construction or excavation that might affect the pipeline.
 Section 4 of the PCR Part 2
Under the OPR-99, pipeline companies must have a safety and loss management system, which is a framework of policies, processes and procedures designed to proactively manage hazards and risks associated with their operations. The management system must be applied to the key program areas for which companies are responsible – safety, pipeline integrity, security, emergency management and environmental protection. Requirements for pipeline companies to have a program to address risks that could arise from third party activities near pipelines are currently nested within broader safety program requirements.
 On 27 October 2012, proposed amendments to the OPR-99 were pre-published in the Canada Gazette, Part 1, to further clarify the management system requirements and how they apply to a pipeline company’s key program areas, among other things.
The Board proposes to require pipeline companies to have a damage prevention program with a management system approach. Damage prevention programs would include, among other things, ongoing monitoring of the land use where the pipeline is located and land next to the pipeline right of way; and a process to manage the movement of vehicles across the pipeline.
Question 2: What elements should pipeline companies have as part of an effective damage prevention program?
3.3 Safe Work Practices for Construction and Excavation
The regulations set out a number of essential steps to work safely near pipelines. Some of these are prescribed within the list of circumstances and conditions for undertaking construction or excavation without leave of the Board.
 Sections 4 and 6 of the PCR Part 1
The Board proposes to clarify the requirements for third parties to: obtain a pipeline locate before construction or excavation activities, employ safe work practices stipulated by the pipeline company, follow instructions of an authorized company representative, expose the pipe in a manner that does not have potential to damage the pipe or its coating, report any contact with a pipe to the pipeline company, and cease work where safety risks exist.
Question 3(a): What should the minimum distance from the pipe be for mandatory pipeline locates before construction or excavation, whether a pipeline right of way exists or not?
Question 3(b): What other safety actions should be required during construction or excavation in addition to those mentioned above?
3.4 Low Risk Crossing by Agricultural Vehicles
The requirements and conditions to safely cross pipelines are found in separate instruments. The PCRs set requirements for construction and excavation activities near pipelines and the Agricultural Crossing Order sets low risk conditions to operate agricultural vehicles or equipment across a pipeline. Public awareness could be improved by including all third party requirements in one place.
The Board proposes to revise the regulations to capture the intent of the Agricultural Crossing Order.
Question 4: Are the low risk conditions set out in the Agricultural Crossing Order appropriate? Why or why not?
4.0 Opportunities to Comment
The Board invites written comments on this Discussion Paper. Comments can be submitted by email, fax or mail to the address listed below. The deadline for submitting written comments is Monday, 11 February 2013. Comments submitted, including names and affiliations, are intended to be made public.
Additional consultation opportunities will be available as the proposed amendments are developed. The proposed amendments, once drafted and approved, would be published for comment on the NEB’s website as a proposed regulatory change and later, pre-published in the Canada Gazette, Part 1 for comments.
Please submit your comments in writing to the coordinates provided below.
Attention: Gary Crowe
National Energy Board
444 Seventh Avenue SW
Calgary, Alberta T2P 0X8
Toll free fax: 1-877-288-8803
For questions on this Discussion Paper, please contact Gary Crowe at 403-292-8604 or 1-800-899-1265, or the above email.
Title or working title of the Regulatory Initiative:
Amendments to National Energy Board Regulations for Damage Prevention
Indication of business impacts:
There are no expected business impacts.
Public consultation opportunities:
On 28 December 2012, the NEB published the discussion paper – Proposed Changes to NEB Regulations for Damage Prevention to advance the commitment made in the Damage Prevention Framework Plan to address key safety issues by pursuing targeted changes to the regulations. The discussion paper was open for comment until 11 February 2013. The comment letters received are posted on the NEB website.
On 18 November 2013, the NEB issued a Notice of Proposed Regulatory Change (NOPRC) for the NEB Regulations relating to Damage Prevention. The NOPRC was available for public comment until 18 December 2013. Questions and Answers are available on the NEB website. The comment letters received are posted on the NEB website.
Draft amendments to the regulations described above were released by the NEB on 19 September 2014 for stakeholder comment. The closing date for submitting written comments is Monday, 20 October 2014. The NEB will take feedback into account when developing the regulatory proposal.
Consultation will also be available once the regulatory proposal is pre-published in the Canada Gazette, Part I for a 30-day public comment period.
Chantal Briand, Regulations Drafting Specialist
National Energy Board
517 Tenth Avenue SW
Calgary, Alberta T2R 0A8
(403) 292-4192 or 1-800-899-1265