The NEB has been working on the DPRs for a number of years. Although it has been a while, there’s good reason for the duration of the journey, and there is some comfort in the fact that it is taking this long.

When the NEB began the process to replace the current Pipeline Crossing Regulations, Part I and Part II, it was doing so on the heels of the relative success it experienced with the development of the goal-oriented Onshore Pipeline Regulations, 1999; decidedly moving from prescriptive regulation to goal-oriented. Although the goal-oriented approach to the DPRs may have had the best of intentions, it has proved to be difficult in practice as highlighted by the Canadian Energy Pipeline Association’s (CEPA) feedback to the NEB. (Click here to see CEPA’s comments).

Over the past decade, when work on the DPRs began, the damage prevention landscape has evolved dramatically in Canada and North America – to the point where, if the DPRs were introduced today, they would not parallel what is considered as the effective damage prevention legislation benchmark in the U.S. (State of Virginia Underground Utility Damage Prevention Act) and Common Ground Alliance Best Practices. Beyond the problems associated with the NEB’s desire for goal-oriented damage prevention legislation, the other anchors slowing its pace behind effective governance are the legislative ability of the Board to introduce effective enforcement governance within damage prevention regulatory text, the problems associated with governing mobile equipment crossings and the risks associated with opening the NEB Act to move those anchors.

Although language within sections 49 to 51 of the NEB Act appears to lend itself to enforcement and penalties associated with unauthorized excavation or construction near pipelines, the window to impose fines or penalties on third parties who perform unauthorized excavations near federally-regulated pipelines is unfortunately very small and the mechanisms to create regulations introducing effective enforcement are challenging. With regard to mobile equipment crossings over pipelines, a long-standing issue for landowners operating farm machinery over pipeline rights of way, the NEB’s proposed DPRs do little to address the matter beyond the provisions of section 112.2 of the NEB Act. In this case, the NEB cites an inconsistency between the English and French versions of this subsection which it believes effectively negates its ability to develop regulations governing mobile equipment crossings. Finally, there is a shared caution with regard to opening the NEB Act for review – a necessity in order to introduce language enabling the NEB Act to positively address enforcement, penalties and govern mobile equipment crossings. Unfortunately, the process isn’t selective; ie: specific sections of the Act can’t simply be opened for review and amended. Rather, if the Act is opened for review, it is opened in its entirety. 

Despite these hurdles, the NEB has spent a great deal of energy and effort over the past 10 years to develop the proposed regulations to their current status, and perhaps more importantly, has taken great strides in seeking stakeholder feedback. In doing so, it has built effective bridges within the Canadian damage prevention community; becoming more involved with the Common Ground Alliance efforts in Canada; co-championing the Canadian CGA movement with CEPA from a federal perspective, and openly participating in, and initiating, Damage Prevention legislation discussion forums. Those forums haven’t been easy for the NEB and its staff tasked with managing DPR development. They have been repeatedly challenged by damage prevention stakeholders and groups with similar interests to jointly consider and incorporate effective damage prevention legislation elements into the DPR – however long that might take. Given the DPRs haven’t been promulgated yet, there is still some optimism that perhaps the Board is considering that option. 

If you would like to learn how HMA Operational Services can assist your company manage its Damage Prevention accountabilities, please contact us.