International and Interprovincial Power Line Damage Prevention Regulations — Authorizations: SOR/2019-347
Canada Gazette, Part II, Volume 153, Number 25
Registration
SOR/2019-347 December 2, 2019
CANADIAN ENERGY REGULATOR ACT
The Canadian Energy Regulator, pursuant to subsections 272(4) and 275(2) of the Canadian Energy Regulator Act footnote a makes the annexed International and Interprovincial Power Line Damage Prevention Regulations — Authorizations.
Calgary, November 25, 2019
Katherine Murphy
Chief of Staff and Corporate Secretary, Canadian Energy Regulator
International and Interprovincial Power Line Damage Prevention Regulations — Authorizations
Interpretation
Definitions
1 (1) The following definitions apply in these Regulations.
- Act means the Canadian Energy Regulator Act. (Loi)
- authorization means an authorization referred to in paragraph 275(3)(b) of the Act. (autorisation)
- holder means the holder of a permit or certificate issued under Part 4 of the Act in respect of an international or interprovincial power line. (titulaire)
- international or interprovincial power line means a facility referred to in subsection 271(1) of the Act. (ligne internationale ou interprovinciale)
- working day means any day that is not a Saturday or a holiday. (jour ouvrable)
Interpretation of Documents
(2) In these Regulations, if a document that is available in both official languages is incorporated by reference as amended from time to time, any amendment to that document is incorporated only when the amendment is available in both official languages.
Prescribed Area
Prescribed area
2 (1) For the purposes of subsection 273(1) of the Act, the prescribed area means the strip of land on which an international or interprovincial power line is located and that corresponds to the right of way of that line.
Right of way
(2) The right of way is the land registered or recorded as the right of way in the land registry office or other office where title to land is registered for the locality in which that land is situated.
Absence of right of way
(3) If there is no right of way for the international or interprovincial power line, the prescribed area is the strip of land 30 m on each side from the centre of the line.
Ground Disturbance — Specified Activities
Activities not included
3 For the purposes of paragraph (a) of the definition ground disturbance in section 2 of the Act, in respect of an international or interprovincial power line, the following activities are specified:
- (a) cultivation to a depth of less than 45 cm below the surface of the ground; or
- (b) any other activity to a depth of less than 30 cm and that does not result in a reduction of the earth cover over any underground portion of a line.
Ground Disturbance — Temporary Prohibition
Prohibition
4 If the holder, after having received a locate request from a person that intends to engage in an activity that causes a ground disturbance within a prescribed area, indicates an area that is situated in the vicinity of an international or interprovincial power line and that may extend beyond the prescribed area, the ground disturbance is prohibited within that area during the period referred to in subsection 276(1) of the Act.
General Provisions
Locate request — timing
5 (1) A person that intends to construct a facility across, on, along or under an international or interprovincial power line or engage in an activity that causes a ground disturbance within a prescribed area, must make a locate request at least three working days before the day on which the construction or activity is to start.
Locate request — making
(2) The locate request must be made to a one-call centre if there is one within the area where the intended construction or activity takes place and if there is none in the area, to the holder directly.
Emergency
(3) In the case of an unexpected situation that could endanger life or cause substantial property or environmental damage and that requires immediate action, the period set out in subsection (1) does not apply and the locate request must be made as soon as possible before the construction or activity starts.
One-call centre
(4) A one-call centre is an organization that, for the purposes of protecting the underground infrastructures of its members from damage and ensuring public safety,
- (a) receives locate requests from persons within a defined geographical area; and
- (b) notifies its members that may be affected by any proposed construction or by any proposed activity that would cause a ground disturbance, if that construction or activity is the subject of a locate request.
Duty to inform
6 Any person that intends to construct a facility across, on, along or under an international or interprovincial power line, engage in an activity that would cause a ground disturbance within a prescribed area or operate a vehicle or mobile equipment across an international or interprovincial power line must, before the construction, activity or operation is to start, inform all persons working on their behalf, including contractors and subcontractors, of the obligations under these Regulations.
Authorizations
Construction of facility
7 (1) The construction of a facility — in an area other than an offshore area — across, on, along or under an international or interprovincial power line is authorized if the person that intends to construct the facility
- (a) obtains written authorization from the holder;
- (b) agrees with the holder in writing to a procedure and schedule for the work;
- (c) makes a locate request in accordance with section 5; and
- (d) meets the following requirements:
- (i) complies with the conditions set out in the authorization,
- (ii) in respect of overhead crossings, ensures that the construction is designed and executed in accordance with CSA Group standard C22.3 No. 1, Overhead systems, as amended from time to time, and
- (iii) in respect of underground crossings, ensures that the construction is designed and executed in accordance with CSA Group standard C22.3 No. 7, Underground systems, as amended from time to time.
Suspension
(2) If the authorization is suspended, the construction must cease for the duration of the suspension.
Measures
(3) Any person that is undertaking the construction of a facility must ensure that the construction is carried out in accordance with the technical details that are set out in the person’s request for authorization and that have been accepted by the holder, as well as with the conditions set out in the holder’s authorization.
Ground disturbance activity
8 (1) Any activity — in an area other than an offshore area — that would cause a ground disturbance within a prescribed area is authorized if the person that intends to engage in the activity
- (a) obtains written authorization from the holder;
- (b) agrees with the holder in writing to a procedure and schedule for the work;
- (c) makes a locate request in accordance with section 5; and
- (d) complies with the conditions set out in the authorization.
Suspension
(2) If the authorization is suspended, the activity must cease for the duration of the suspension.
Measures
(3) Any person that is engaged in an activity that causes a ground disturbance within a prescribed area must
- (a) ensure that the activity is carried out in accordance with the conditions set out in the holder’s authorization;
- (b) ensure that there is no additional earth or other material within the prescribed area that could reduce the ground to conductor clearance of the overhead line;
- (c) immediately notify the holder of any contact with any underground portion of the holder’s international or interprovincial power line; and
- (d) notify the holder at least 24 hours before backfilling over any underground portion of the holder’s international or interprovincial power line that is exposed, unless the holder and the person that is engaged in the activity agree otherwise.
Operation across a power line
9 The operation of a vehicle or mobile equipment across an international or interprovincial power line is authorized if the person that intends to operate the vehicle or mobile equipment obtains authorization from the holder.
Circumstances
Construction of international or interprovincial power line
10 For the purposes of paragraph 272(1)(c) of the Act, a person may construct an international or interprovincial power line that passes on, over, along or under a facility in the following circumstances:
- (a) in respect of overhead crossings, the line is designed and constructed in accordance with CSA Group standard C22.3 No. 1, Overhead systems, as amended from time to time;
- (b) in respect of underground crossings, the line is designed and constructed in accordance with CSA Group standard C22.3 No. 7, Underground systems, as amended from time to time;
- (c) the line does not extend beyond any terminal of that line;
- (d) the line is designed and constructed in accordance with any applicable provincial and federal legislation;
- (e) the person obtains written permission from the owner of the facility; and
- (f) the person and the owner of the facility agreed in writing to a construction procedure and schedule for the work.
Transitional Provisions
Definition of coming-into-force day
11 In sections 12 to 15, coming-into-force day means the day on which the Canadian Energy Regulator Act comes into force.
Leave
12 Any leave granted by the holder before the coming-into-force day, under subsection 58.31(2) of the National Energy Board Act, as it read immediately before that date, to operate a vehicle or mobile equipment across an international or interprovincial power line, remains in force until the expiry date set out in the leave.
Leave — excavation or construction of facility
13 Any excavation or the construction of a facility that was started before the coming-into-force day and for which leave of the National Energy Board was not necessary under paragraph 58.33(c) of the National Energy Board Act, as it read immediately before that day, may be continued after that day if it is carried out in conformity with the applicable conditions set out in section 3 of the Power Line Crossing Regulations, as it read immediately before that day.
Construction — international or interprovincial power line
14 Any construction of an international or interprovincial power line that passes on, over, along or under a facility for which leave was granted before the coming-into-force day, under subsections 58.28(1) and (4) of the National Energy Board Act, as it read immediately before that date, continues to be authorized if the construction is carried out in conformity with the applicable circumstances set out in section 4 of the Power Line Crossing Regulations, as it read immediately before that day.
Repeal
15 The Power Line Crossing Regulations footnote 1 are repealed.
Coming into Force
S.C. 2019, c. 28, s. 10
16 These Regulations come into force on the day on which the International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates come into force, but if they are registered after that day, they come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts came into force on August 28, 2019. Through this Act, the National Energy Board Act (NEB Act) is repealed, and the regulator becomes the Canadian Energy Regulator (CER or Regulator). The Commission is responsible for the adjudicative functions of the Regulator.
Prior to the Canadian Energy Regulator Act (CER Act), the Power Line Crossing Regulations (PLCR), made under the NEB Act, set out the process for safely conducting activities specified in subsection 58.31(1) of the NEB Act near international or interprovincial power lines (power lines) described in subsection 58.303(1) of the NEB Act. The PLCR provided that specified activities could be conducted near power lines if certain safety conditions were met, including obtaining the permission of the certificate or permit holder.
The CER Act updates the damage prevention provisions and regulation-making authorities that were in the NEB Act for safely conducting activities near power lines described in subsection 271(1). The PLCR was not aligned with the changes introduced by the CER Act to the power line damage prevention provisions and regulation-making authorities, and new regulations are required.
Objectives
The objectives of the International and Interprovincial Power Line Damage Prevention Regulations – Authorizations (the Regulations) are to
- align with the CER Act’s provisions for power line damage prevention;
- clarify the requirements for anyone planning to construct a facility across, on, along or under a power line, engage in an activity that causes a ground disturbance within the prescribed area, or to cross a power line with a vehicle or mobile equipment, unless within the travelled portion of a highway or public road, so that the activity can be carried out safely; and
- enhance safety through the requirement to contact a one-call centre or the holder and make a locate request before starting any authorized activity near a power line.
Description
The Regulations (made under CER Act subsections 272(4) and 275(2)) apply to anyone planning to construct a facility (in an area other than an offshore area) across, on, along or under a power line (near a power line); engage in an activity that causes a ground disturbance in the prescribed area; operate a vehicle or mobile equipment across a power line (crossing a power line), unless within travelled portion of a highway or public road; or construct a power line that passes on, over, along or under a facility. The Regulations apply to an international or interprovincial power line as defined in the Regulations.
Reciprocal regulations are also being enacted as the International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Certificates (made under CER Act paragraphs 96(c) to (f), and 275(3)(b)), and apply to the holders of the certificates for power lines (referred to as the Reciprocal Regulations).
Prescribed area
The CER Act at subsection 273(1) provides that no activity that causes a ground disturbance is allowed in the prescribed area, unless the activity is authorized by an order made by the Commission or by regulations. The CER Act replaces the activities of excavating using power-operated equipment or explosives within 30 m of the power line in the NEB Act with the term “ground disturbance within the prescribed area.”
The CER Act provides that the prescribed area, where an activity causing a ground disturbance is not allowed, may be determined through an order from the Commission or through regulations. The CER Act also provides that the measures to be met when an activity causes a ground disturbance may be set through an order or through regulations.
The Regulations determined the prescribed area as the strip of land on which a power line is located and that corresponds to the right of way (ROW) of that line. The ROW is the land registered or recorded as the ROW in the land registry office or other office where title to land is registered for the locality in which that land is situated. If there is no ROW for the power line, the prescribed area is the strip of land 30 m on each side from the centre of the line. The Regulations provide the measures that must be met when a person is planning to conduct an activity that causes a ground disturbance within the prescribed area.
Activities causing a ground disturbance
The Regulations specify that the following activities are not a ground disturbance:
- (a) cultivation to a depth of less than 45 cm below the surface of the ground; or
- (b) any other activity to a depth of less than 30 cm and that does not result in a reduction of the earth cover over any underground portion of a line.
The Regulations also set a requirement that there is to be no additional earth or other material within the prescribed area that could reduce the ground to conductor clearance of the overhead line.
Application for authorization
The Regulations require that anyone planning to construct a facility near a power line or to engage in an activity that causes a ground disturbance within the prescribed area must first obtain an authorization from the holder, and initiate a locate request through the one-call centre that services the area at least three working days before the day on which the construction or activity is to start. Where there is no one-call centre in the area where the activity is planned, a person must contact the holder directly. Upon being notified through the one-call centre or directly contacted, holders are required to clearly mark the underground portion of their power lines.
The Regulations require that anyone planning to operate a vehicle or mobile equipment across a power line, unless within travelled portion of a highway or public road, must obtain an authorization from the holder.
In any of the activities described above, if an authorization cannot be obtained from the holder, the process under the CER Act is, as it was under the NEB Act, that the person could apply to the Commission for an authorization to conduct the activity.
Ground disturbance and construction of a facility
Anyone planning to construct a facility near a power line or conduct an activity causing a ground disturbance within the prescribed area will need to
- obtain written authorization from the holder and agree with the holder in writing to a procedure and schedule for the work;
- make a locate request, at least three working days before the start of the authorized construction or the activity causing a ground disturbance, to a one-call centre if the activity is within the area where a one-call centre exists, or to the holder directly if there is no one-call centre in that area;
- respect the conditions set out in the authorization; and
- follow the safety measures in the Regulations.
Operation with a vehicle or mobile equipment across a power line
Subsection 58.31(2) of the NEB Act provided that anyone planning to operate a vehicle or mobile equipment across a power line must have first obtained permission from the holder, unless the vehicle or mobile equipment was operated within the travelled portion of a highway or public road. Subsection 273(2) of the CER Act updates this framework to provide that authorizations for crossing a power line may be set in an order made by the Commission or in regulations (made under section 275). The Regulations maintain the requirement that anyone planning to operate a vehicle or mobile equipment across a power line requires an authorization from the holder.
Construction of an international or interprovincial power line across a facility
The Regulations maintain the circumstances under which the construction of a power line that passes on, over, along or under a facility (e.g. pipeline, highway, etc.) can be undertaken if a permit or a certificate has been issued under the CER Act. The circumstances include following the standards for overhead and underground systems, designing and constructing the power line in accordance with any applicable provincial and federal legislation, obtaining written permission from the owner of the facility, and agreeing with the holder in writing to a procedure and schedule for the work.
Leaves (authorizations) granted prior to the coming into force of these Regulations
The Regulations contain transitional provisions specifying that leaves (authorizations) granted prior to the coming into force of the Regulations will remain in force until their expiration date.
Regulatory development
Consultation
Discussion paper with proposed concept for regulations — fall 2018
The discussion paper for early engagement was commenced under the National Energy Board (NEB). It included a description of the structure for the new regulations and sought input on matters such as the prescribed area, safety measures, responding to requests for authorization, making locate requests prior to conducting work near power lines, requirements for conducting activities near power lines, a requirement for a holder to be a member of a one-call centre, and a requirement for a holder to have a damage-prevention program.
Notifications regarding the discussion paper were sent through Natural Resources Canada (NRCan) to a broad group of stakeholders and to Indigenous footnote 2 groups and organizations on September 18, 2018. Notifications were again sent on October 19, 2018, when the discussion paper was posted on the NRCan website for comments (with the NEB website providing a link to this page). Recipients included Indigenous groups and organizations across Canada, holders, the electricity industry association, provincial and territorial jurisdictions, provincial regulators, landowners, landowner associations and other interested organizations including damage prevention organizations. The recipients also included Indigenous organizations, communities, and individuals with an interest in power lines (e.g. previous intervenors in recent power line proceedings), as well as those living in the vicinity of power lines authorized under the NEB Act. The notifications included contact information for anyone seeking to ask questions or obtain clarification on the discussion paper.
The discussion paper was available for comment until November 28, 2018. During this period, several requests were received to meet concerning the proposed CER Act as well as the discussion paper, including from Indigenous organizations, provincial governments, the electricity industry association, an agricultural association, and the NEB-coordinated multi-stakeholder Land Matters Group (Land Matters Group). NRCan and the NEB responded to all requests received. As part of the Government’s engagement on the legislation introducing the CER Act, information on the Regulations was provided at several of the monthly open-call sessions that were held with Indigenous groups and organizations across the country.
Ten submissions were received from holders and the electricity industry association, Indigenous organizations, agricultural associations, and professional surveyors. The discussion paper and the submissions received are posted on NRCan’s consultation web page for A New Canadian Energy Regulator Consultation.
Consultation paper with draft regulations — spring 2019
To meet the Government’s objective to implement the new impact assessment process by summer 2019, an exemption was granted from the regulatory policy requirement to publish draft regulations in the Canada Gazette, Part I, to provide stakeholders with an opportunity to provide feedback on the regulatory details. In its place, a consultation paper with the draft proposed text for the Regulations was provided for comment between May 8, 2019, and June 7, 2019.
The consultation paper included a summary of how the comments received on the discussion paper were addressed in the development of the Regulations. The consultation paper contained the draft Regulations for review and comment.
Notifications regarding the comment period were sent by NRCan to the same recipients who received the discussion paper in October 2018, as described above. The consultation paper was posted on NRCan’s web page A New Canadian Energy Regulator; the NEB’s website provided a link to this page. The notifications included contact information for anyone seeking to ask questions or obtain clarification on the consultation paper.
During the comment period, a request was received from the Land Matters Group for an overview of the consultation paper and the draft Regulations. An overview was provided, and questions related to how the Regulations would function were addressed.
Nine submissions were received — four from Indigenous communities and organizations, one from an agricultural association, two from holders, one from the electricity industry association, and one from a drilling company.
Summary of comments received
Submissions made during the comment periods for the discussion paper (October and November 2018) and the draft Regulations in the consultation paper (May and June 2019) were reviewed in the development of the Regulations. Generally, submissions supported the draft Regulations. A summary is provided below by topic area. Commenters acknowledged that input in submissions for the discussion paper was incorporated into the draft Regulations provided in the consultation paper.
Prescribed area
In submissions made for the discussion paper, most commenters requested additional clarification on how the prescribed area would be measured to conduct activities that cause a ground disturbance. The prescribed area was initially proposed as 30 m on either side of the power line. Suggested alternatives included measuring the prescribed area perpendicularly from the centre point of the tower and measuring the prescribed area perpendicularly from the outermost power lines projected to ground level (for above-ground power lines).
Submissions from industry and professional surveyors noted that the proposed distance of 30 m may be unclear, and that this distance may be sufficient for some power lines and too little for others. It was also suggested that the prescribed area should be equal to the size of the power line right of way (ROW). An agricultural association submitted that the 30 m zone is more than sufficient and that it could even be reduced to cover only the portion of land under the conductors. Another agricultural association and several Indigenous organizations submitted that 30 m on either side of the power line is adequate to maintain worker safety and prevent damage to power lines.
This input was reflected in the draft Regulations provided in the consultation paper, where the prescribed area is described as the strip of land that the power line is located within and that corresponds to the ROW of that line, recorded in the land registry office or other office where title to land is registered for the locality in which that land is situated. If there is no ROW for the power line, the prescribed area means the strip of land 30 m on each side from the centre of the power line.
Submissions for the consultation paper noted that this reflects a balanced approach allowing for variations based on geographical and technical requirements, and that in the absence of an established ROW, a distance of 30 m would be adequate. Following the comment period, these provisions for the prescribed area in the consultation paper were maintained in the Regulations.
Ground disturbance within the prescribed area
Submissions made for the discussion paper indicated that the description of activities causing a ground disturbance was broad and could trigger the need for an evaluation by holders for minor and routine activities near a power line, such as agricultural plowing. Both agricultural associations, holders and the electricity industry association supported identifying certain activities not to be included as a ground disturbance in the Regulations. Commenters recommended that the provision in the CER Act (and in the previous NEB Act) stating that a ground disturbance for pipelines does not include certain activities to specific depths should be adopted for power lines.
The draft Regulations in the consultation paper reflect this input and provide that ground disturbance does not include a ground disturbance caused by (a) an activity that is caused by cultivation to a depth of less than 45 cm below the surface of the ground; or (b) an activity that is caused by any other activity to a depth of less than 30 cm and that does not result in a reduction of the earth cover over any underground portion of a power line.
In submissions on the consultation paper, comments received from holders and the electricity industry association generally supported this approach. One agricultural association requested that the depth for cultivation activities in item (a) be increased to 100 cm (1 m). One Indigenous organization indicated they were satisfied that the depth of activities in item (b) would be adequate for gathering medicinal plants, and would ensure safety. The Regulations maintain the proposed text for activities that are not a ground disturbance following the comments received on the consultation paper in relation to the safety of people conducting activities near power lines.
Holders and the electricity industry association also requested that the Regulations specify that any person authorized to conduct a ground disturbance activity within the prescribed area must ensure that no additional earth cover or other material is added on the right of way that could reduce the ground-to-conductor clearance of the overhead power line. This measure was added in the Regulations for the safety of anyone working near a power line.
Locate request prior to conducting ground disturbance activities within the prescribed area and construction near power lines
The discussion paper provided a standard process for making locate requests, including making the request three working days before an authorized activity that causes a ground disturbance within the prescribed area is planned to start. An agricultural association indicated a concern with the three-day period, noting the need to access, and conduct activities on, agricultural land in a timely manner. A submission from an Indigenous organization indicated that the proposed process of a locate request appears to be adequate to maintain safety when conducting work near power lines. Holders and the electricity industry association noted the need for clarification as to when authorizations and locate requests are required.
The draft Regulations in the consultation paper maintained the process described in the discussion paper, where any person planning an activity near a power line would need to obtain authorization from the holder, and need to make a locate request to mark the location of any underground portion of a power line at least three working days in advance of commencing the work.
In submissions for the consultation paper, holders and the electricity industry association indicated that the timeline is workable if there is an authorization in place.
This provision is maintained in the Regulations. This three-working-day locate period is considered the standard across Canada for underground infrastructure.
Crossing of power lines
The discussion paper noted that, based on the provisions in the CER Act and in the previous NEB Act, operation of a vehicle or mobile equipment across a power line, in an area other than the travelled portion of a highway or public road, must be authorized. The NEB Act provided that the holder was to provide the authorization (subsection 58.31(2)). The CER Act now provides that crossing a power line requires an authorization to be obtained through an order or through regulations, and can be provided by the holder.
Submissions for the discussion paper provided a variety of perspectives, including that, for crossings, the Regulations should refer to a distance from the power line, or should only be required when the height of crossing vehicles poses a safety risk or differs from the height of vehicles routinely used for the land use in question. For example, power lines located on agricultural land have high clearance requirements due to potential presence of sprayers. The submissions noted that proper power line design should address risks associated with vehicle crossings.
In submissions for the consultation paper, two Indigenous organizations noted that Aboriginal rights and title holders should not be required to ask for permission to access any linear infrastructure on their territories. Another Indigenous organization noted concern that the regulatory framework for crossing a power line may impact the ability of hunters to access hunting grounds.
Given the range of situations that may occur where power lines are located across Canada, the provisions in the draft Regulations (as set out in the consultation paper) for crossings are maintained in the Regulations; namely, operation of a vehicle or mobile equipment across a power line is authorized if the person intending to cross the power line obtains authorization from the holder, or if it is operated within the travelled portion of the highway or public road. This is consistent with the requirement contained in subsection 58.31(2) of the NEB Act, where operation of vehicle or mobile equipment across a power line must be authorized by the holder, other than in an area that is a travelled portion of a highway or public road.
The power line damage prevention provisions in the CER Act and the Regulations are focused on the safety of the public. This is an issue of significance, and there is a valid compelling and substantial objective in requiring all people, including Indigenous peoples, to seek authorization for these activities.
Under the CER Act, a person can apply to the Commission to obtain an order for the crossing of a power line. In considering the application, the Commission must ensure that Indigenous and treaty rights and interests are considered in making a decision.
The provision in the Regulations for operating a vehicle or mobile equipment across a power line remain unchanged following the comments received on the consultation paper.
Modern treaty obligations and Indigenous engagement and consultation
The Regulations are not expected to impact the rights of Indigenous peoples under section 35 of the Constitution Act, 1982, modern treaties, or international human rights obligations.
An assessment of modern treaty implications indicated that there is one modern treaty, with the Tsawwassen First Nation, that overlaps with a constructed power line, owned and operated by the BC Hydro and Power Authority. As the power line damage prevention provisions in the CER Act and the Regulations are focused on the safety of the public, this is an issue of significance. There is a valid, compelling and substantial legislative objective in requiring all people, including Indigenous peoples, to seek authorization for these activities. The Regulations do add more to the previous safety requirements in the legislation and related regulations, but there have been no specific implications to modern treaty obligations identified.
Instrument choice
The baseline scenario was not to have to update the Regulations made under the NEB Act (PLCR). However, the changes to the power line damage prevention provisions and the regulation-making authority introduced in the CER Act required that the PLCR be replaced, so the status quo was not a feasible option. The Regulations are considered the only option, and are required to maintain safety for anyone planning to construct a facility across, on, along or under a power line, engage in an activity that causes a ground disturbance within the prescribed area, or operate a vehicle or mobile equipment across a power line, unless in a travelled portion of a highway or public road.
Regulatory analysis
Benefits and costs
The Regulations maintain the requirements for safety and damage prevention by setting clear expectations for anyone planning to construct a facility near a power line, engage in an activity causing a ground disturbance within the prescribed area, or cross a power line with a vehicle or mobile equipment (unless within the travelled portion of a highway or public road). Additional benefits will result from coordination of communication through one-call centres to protect persons and power lines.
No cost impacts are expected as a result of the Regulations. Obtaining a locate request is currently a service that is offered to the public when they contact a one-call centre. The public also has the option of using the click-before-you-dig web portal operated by one-call centres.
Small business lens
The small business lens does not apply to the Regulations.
One-for-one rule
The power line damage prevention provisions and regulation-making authority in the CER Act require the repeal of the PLCR and replacement with two regulations: International and Interprovincial Power Line Damage Prevention Regulations – Authorizations (the Regulations), and the Reciprocal Regulations, International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates. There are no incremental administrative requirements associated with the Regulations.
Regulatory cooperation and alignment
The Regulations align with damage prevention provisions and practices in other jurisdictions in Canada. Requirements for power lines under provincial jurisdiction also provide defined areas around power lines that establish safe distances for activities. Pre-approval is generally required in other jurisdictions when anyone is planning to conduct work near or under a power line, or cross it with machinery or vehicles.
Contacting a one-call centre is an accepted practice across Canada when planning to engage in an activity causing a ground disturbance. Various jurisdictions across Canada have best practices or rules in place regarding contacting a one-call centre when planning these activities.
The Regulations are not related to a work plan or commitment under a formal regulatory cooperation forum.
Strategic environmental assessment
In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal.
Rationale
The Regulations are aligned with the damage prevention provisions and regulation-making authorities in the CER Act.
The Regulations and the Reciprocal Regulations (International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates) together set out safety measures and the authorization framework to be followed when anyone is planning to construct a facility across, on, along or under a power line, engage in an activity causing a ground disturbance within the prescribed area, or operate a vehicle or mobile equipment across a power line, including obtaining the authorization of the holder. The Regulations also formalize accepted best practices such as contacting a one-call centre when planning to engage in an activity that causes a ground disturbance.
Implementation, compliance and enforcement, and service standards
The Regulations come into force on the first day on which the International and Interprovincial Power Line Damage Prevention Regulations – Obligations of Holders of Permits and Certificates come into force, but if they are registered after that day, they come into force on the day on which they are registered.
Under the CER Act, the Regulator will enforce regulatory requirements to obtain compliance, deter future non-compliance, and prevent harm by using the most appropriate tools available. The Regulator has trained and qualified damage prevention inspection officers and enforcement personnel, and existing regulatory oversight programs. The Regulator will perform inspections and audits on a risk-informed basis. There are no new service standards created by the Regulations.
The Regulator will use a series of compliance and enforcement tools, including audits and inspections, compliance meetings, notices of non-compliance, and orders to encourage compliance with the Regulations to minimize infractions related to safety and damage prevention. Each case will be examined on an individual basis to determine the best course of enforcement to make sure damage prevention and safety requirements are followed.
Contacts
Chantal Briand
Regulatory Policy Team
Canadian Energy Regulator
517 Tenth Avenue SW, Suite 210
Calgary, Alberta
T2R 0A8
Email: chantal.briand@cer-rec.gc.ca
Shannon Neufeld
Technical Leader, Damage Prevention
Canadian Energy Regulator
517 Tenth Avenue SW, Suite 210
Calgary, Alberta
T2R 0A8
Email: shannon.neufeld@cer-rec.gc.ca
Fax: 403‑299‑5503
General information Email: DPinfo@cer-rec.gc.ca
Toll-free telephone: 1‑800‑899‑1265
Toll-free fax: 1‑877‑288‑8803
TTY (teletype): 1‑800‑632‑1663