ARCHIVED — Vol. 147, No. 4 — February 13, 2013

Registration

SOR/2013-17 January 31, 2013

NATIONAL ENERGY BOARD ACT

Regulations Amending the National Energy Board Processing Plant Regulations (Miscellaneous Program)

P.C. 2013-26 January 31, 2013

The National Energy Board, pursuant to subsection 48(2)(see footnote a )of the National Energy Board Act(see footnote b), makes the annexed Regulations Amending the National Energy Board Processing Plant Regulations (Miscellaneous Program).

His Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources, pursuant to subsection 48(2)(see footnote c) of the National Energy Board Act(see footnote d), approves the annexed Regulations Amending the National Energy Board Processing Plant Regulations (Miscellaneous Program), made by the National Energy Board.

REGULATIONS AMENDING THE NATIONAL ENERGY BOARD PROCESSING PLANT REGULATIONS (MISCELLANEOUS PROGRAM)

AMENDMENTS

1. The definition “construction” in section 1 of the National Energy Board Processing Plant Regulations (see footnote 1) is replaced by the following:

“construction” includes clearing or grading. (construction)

2. (1) Paragraph 4(1)(b) of the Regulations is replaced by the following:

  • (b) the Canada Occupational Health and Safety Regulations.

(2) Subsection 4(2) of the English version of the Regulations is replaced by the following:

(2) If there is an inconsistency between these Regulations and the Canada Occupational Health and Safety Regulations, the latter Regulations prevail to the extent of that inconsistency.

3. Section 6 of the English version of the Regulations is replaced by the following:

6. If a company is required by these Regulations to develop a design, specification, program, manual, procedure, measure or plan, the Board may order amendments to it if they are necessary for safety or environmental reasons or in the public interest.

4. Section 8 of the Regulations is repealed.

5. Subsection 9(2) of the Regulations is repealed.

6. Paragraph 15(1)(b) of the French version of the Regulations is replaced by the following:

  • b) informer l’entrepreneur des pratiques et méthodes spéciales en matière de sécurité à suivre en raison de ces conditions ou aspects;

7. Paragraph 26(a) of the Regulations is replaced by the following:

  • (a) the construction activities at its processing plant do not create a detriment to property or to the environment or a hazard to the safety of persons that is greater than the detriment or hazard normally associated with identical activities carried on elsewhere in Canada;

8. Subsection 28(3) of the Regulations is replaced by the following:

(3) The company, or the agent or mandatary who supervised the test, shall prepare, date and sign a record of the test.

9. Paragraph 33(a) of the Regulations is replaced by the following:

  • (a) maintenance activities at its processing plant do not create a detriment to the environment or a hazard to the safety of persons that is greater than the detriment or hazard normally associated with identical activities carried on elsewhere in Canada; and

10. Paragraph 39(b) of the Regulations is replaced by the following:

  • (b) retain, in accordance with the record retention and handling program referred to in section 55, data recorded at the processing plant for analysis in the event of an incident;

11. (1) Paragraph 40(a) of the English version of the Regulations is replaced by the following:

  • (a) operate all hazard-detection devices as part of regular maintenance activities to test whether they are functional; and

(2) Paragraph 40(b) of the Regulations is replaced by the following:

  • (b) document all tests, repairs and replacement of parts in the hazard-detection devices and retain, in accordance with the records retention and handling program referred to in section 55, the documents.

12. Paragraph 44(2)(b) of the French version of the Regulations is replaced by the following:

  • b) les pratiques et les méthodes de protection de l’environnement responsables qui s’appliquent à l’exploitation journalière de l’usine de traitement;

13. (1) Subsection 49(1) of the Regulations is replaced by the following:

49. (1) In this section, “suspend” means to interrupt the operation of the whole or a portion of a processing plant due to an unforeseen event or to conduct scheduled maintenance, repairs or replacements.

(1.1) A company shall, as soon as practicable, notify the Board and the appropriate authorities of the province in which its processing plant is located of any decision made by the company to suspend

  • (a) the operation of the whole plant for a period exceeding 24 hours; or
  • (b) the operation of any portion of the plant for a period exceeding seven days.

(2) The portion of subsection 49(2) of the Regulations before paragraph (a) is replaced by the following:

(2) In addition to the notification under subsection (1.1), the company shall provide the following information to the Board and to the appropriate authorities of the province in which its processing plant is located:

COMING INTO FORCE

14. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

The National Energy Board Processing Plant Regulations (PPR), SOR/2003-39, are made pursuant to subsection 48(2) of the National Energy Board Act (Act). Subsection 48(2) authorizes the National Energy Board (NEB or the Board) to make regulations, with the approval of the Governor in Council, governing the design, construction, operation and abandonment of pipelines. The Act further allows the Board to establish regulations which provide for the protection of the environment and property, and the safety of the public and of the company’s employees in the construction, operation and abandonment of a pipeline. The Supreme Court of Canada concluded that processing plants fall within the definition of “pipeline” in the Act. (see footnote 2)

2. Issues

The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) reviewed the PPR and identified a number of issues, including

  • inconsistencies between the English and French versions in some sections;
  • minor concerns of a technical nature, such as correcting titles of referenced legislation, repealing certain sections [e.g. section 8 and subsection 9(2)] and clarifying geographic limits; and
  • one non-substantive change regarding the PPR, to include a definition of the word “suspend” in section 49.

3. Objectives

The objective of the amending Regulations is to provide clarity to the PPR in response to the issues raised by the SJCSR.

4. Description

In response to the SJCSR’s comments, the Board committed to amending the following sections:

  • Section 1 includes a definition of “construction.” The SJCSR found the English and French versions to be inconsistent. The French version contains no counterpart to the words “means building or fabricating.” The definition is amended to read “‘construction’ includes clearing or grading,” in the English version, and “« construction » S’entend notamment des travaux de dégagement ou de nivellement” in the French version.
  • Section 4 refers to the Canada Occupational Safety and Health Regulations. These Regulations were amended and the words “Health” and “Safety” were inverted in the title. Both versions of section 4 of the PPR are amended to reflect this change.
  • Section 6 allows the Board to order amendments to a company’s design, specification, program, manual, procedure, measure or plan. The SJCSR found the English and French versions set two different standards; the English version enabled the Board to set a subjective standard upon which it may order amendments (“if the Board considers the amendments necessary”) while the French version set out an objective standard (“if it is necessary”). The SJCSR proposed that the English version of this section be amended to avoid setting a subjective standard for an administrative decision. Therefore, the English version is modified to read “if they are necessary.”
  • Section 8 states that a company shall comply with an order of the Board made under these Regulations. Pursuant to subsection 48(3) of the Act, every person who contravenes these Regulations is guilty of an offence punishable on summary conviction. The SJCSR was of the view that section 8 would appear to step beyond the enabling authority of the Act. The NEB considered the provision within the enabling authority. Nonetheless, the Board deletes this section. The Board could draw upon its powers under section 13 and subsection 48(1) of the Act to enforce compliance with its orders.
  • Subsection 9(2) requires that a company shall develop a program for the design, construction, operation, and abandonment of pressure vessels and pressure piping at its processing plant that includes provisions for document handling and record retention. The SJCSR noted the provision appears duplicative of section 55, which requires generally that a company shall develop, implement, and maintain a record retention and handling program. As a result, this subsection has been deleted.
  • Paragraph 15(1)(b) requires a company that contracts for the provision of services in respect of the construction, operation or abandonment of its processing plant, to inform the contractor of special safety practices and procedures to be followed as a result of those conditions or features. The SJCSR held that the use of the words “qui s’imposent” in the French version should be replaced by “à suivre” in order to achieve consistency throughout the Regulations. Consequently, this paragraph is modified so that the words “qui s’imposent” in the French version are replaced by “à suivre.”
  • Paragraphs 26(a) and 33(a) of the Regulations respectively impose requirements on a company during the construction or the operation of the processing plant. The SJCSR asked for advice concerning the meaning of “elsewhere” as used in these provisions. The intent is to specify the geographical limit, which is “in Canada.” Therefore, the word “elsewhere” is qualified by including the words “in Canada” to expressly provide the intended geographical limit in these paragraphs.
  • Subsection 28(3) obligates a company to ensure that each pressure test conducted at its processing plant is performed under its direct supervision, or the direct supervision of its agent or mandatary. The SJCSR inquired as to whether a provision should be added requiring that in all cases, a log, chart or other record be prepared as a result of the test. The subsection is amended to add the words “shall prepare.” The addition of these words does not create any new administrative burden on the companies, as they already prepare these documents.
  • Paragraphs 39(b) and 40(b) require that a company retain data or records relating to its processing plant. The SJCSR noted these sections do not limit the time period for which the records or data are to be retained and therefore the requirement may extend indefinitely. The requirements set out in these sections provide for specific situations where records are required. However, these requirements should be considered within the context of the record retention and handling program required by section 55. Each subsection is amended so that the retention requirement refers to section 55.
  • Paragraph 40(a) states that a company shall operate all hazard-detection devices as part of regular maintenance activities to test whether they are fully functional. The SJCSR noted that there is a discrepancy between the French and the English version of this paragraph, in that the English version used the phrase “fully functional,” while the French version uses only the word “functional” (“fonctionnement”). The English version of the Regulations is modified to use the word “functional” without a qualifier.
  • Paragraph 44(2)(b) requires a company to ensure that the training program instructs persons directly involved in the operation of a processing plant on responsible environmental practices and procedures in the day-to-day operation of the processing plant. The SJCSR stated that the English version refers to “responsible environment practices and procedures,” while the French version refers to “the practices and methods of protection of the environment” (“les pratiques et les méthodes de protection de l’environnement”). The SJCSR stated that these passages do not seem equivalent, and suggested that a reformulation is necessary. The French version of this paragraph is modified with the following wording: “des pratiques et des méthodes environnementales responsables.”
  • Subsection 49(1) requires a company to notify the Board and the appropriate authorities of the province in which its processing plant is located, of any decision to suspend the operations of the plant for more than 24 hours, or the planned or routine operation of any portion of the plant for a period exceeding 7 days. Additionally, the company is required to provide the Board and the appropriate provincial authorities, with details of the suspension including the reason, the duration, the impact on throughput, and the effect on the safety of persons or the environment. The SJCSR sought a reason as to why the word “suspend” is not defined in the Regulations, while the word “deactivate” is defined. To add clarity, section 49 is amended to include a definition of “suspend.”

The amendments to the PPR are minor corrections that address issues of a technical nature identified by the SJCSR. They do not reflect substantive changes to the Regulations they modify. There will be no costs or savings as a result of these changes and there will be no impact on other areas or sectors.

5. Consultation

The National Energy Board notified the NEB-regulated processing plant companies, and the appropriate provincial authorities of the provinces in which the processing plants are located, British Columbia and Nova Scotia, of the proposed amendments to the PPR. The notification letter, the proposed amending Regulations and the Notice of Regulatory Change were also posted on the Board’s Web site. No comments were received.

6. Rationale

The amending Regulations address issues raised by the SJCSR as described above. These amendments improve the clarity of the Regulations, provide accurate titles of referenced regulations, and correct discrepancies and inconsistencies between the English and French versions.

The amendments have no impact and no cost; they maintain the same requirements as the regulations they modify.

7. Contact

Chantal Briand
Regulatory Approaches Team
Strategy and Analysis
National Energy Board
444 Seventh Avenue SW
Calgary, Alberta
T2P 0X8
Telephone: 403-292-4192
Fax: 403-292-5503
Email: chantal.briand@neb-one.gc.ca