Operations and Maintenance Activities on Pipelines Regulated Under the Canadian Energy Regulator Act: Requirements and Guidance Notes

Guidance Notes:

O&M activities do not include the addition of a parallel piece of pipe without removal of the existing pipe that has permanently ceased operation. If the company plans to leave an existing section of pipe in place, it must apply to the CER: (i) for an exemption under section 214 of the CER Act, for the construction and operation of the new section of pipeline; and (ii) to decommission the existing section of pipe under the OPR.

Companies are required to apply to the CER for the installation of any length of pipe that is greater than 5 km.

In general, permissible "upgrades" do not include additions of components to a pipeline or processing facility that were not specifically contemplated in the original Certificate or Order. However, the definition of upgrade includes the addition of cathodic protection systems, as these are typically contemplated during the assessment of the original pipeline. Therefore, the addition of a cathodic protection system is considered an O&M activity.

Upgrades include improvements in technology. For example, if a company was proposing to install solar panels as a power source in place of an existing source of fuel oil, the proposed installation would be considered a permissible upgrade under the O&M Guidelines. This is analogous to removing an existing section of pipe and putting a new section in its place, since the function of the installation would not change from what was originally approved.

Upgrades do not include adding new connections, including tie-ins or hot taps, and associated piping and metering facilities for the purposes of sale or receipt of oil or gas. These installations still require an Order under section 214 of the CER Act. Metering or regulating facilities installed for the sole purposes of measurement or monitoring are considered O&M activities.

Companies are encouraged to contact the CER for additional clarification related to specific O&M activities they are planning (see Section 7.0 for contact information).

Guidance Notes:

If the proposed O&M activity takes places on federal lands (e.g., National Parks, national defence lands, etc.), the company is responsible for consulting the appropriate Federal Government authorities and obtaining any permits required.

If the proposed O&M activity takes place on reserve lands, land claim settlement lands, or Metis settlement lands, the company is responsible for adhering to any additional legal requirements, and identifying and consulting with the appropriate First Nation, Inuit, or Metis Settlement.

Guidance Notes:

For notification, the CER requires sufficient information to understand the nature and scope of the O&M activity. The information required for notification to the CER should be concise, but it should provide the CER with sufficient detail to determine whether CER follow-up is warranted. With respect to CER inspections of O&M activities, the CER will rely on the information outlined in the company’s O&M Manual, its Environmental Protection Program, and information resulting from public consultation activities when verifying compliance of O&M activities.

Companies are required to file notifications using the Online Event Reporting System (OERS).

Section 8.0 outlines additional information that the CER requires companies to provide with their notification of O&M activities involving the acquisition of new land, or ground disturbance using power-operated equipment within 30 m of a wetland or a water body or within 30 m of a substrate of a wetland or water body.

To view O&M notifications on the CER's Internet site, select “View regulatory documents” under the "Applications and hearings" heading. Once in "REGDOCS,” under the "Facilities" column heading, select the facility's commodity type (e.g., oil, gas). In the next screen, select the company of interest. The notifications will be filed in a sub-folder called "Notifications of Operations and Maintenance Activities" at the top of the page.

Guidance Notes:

Notifying the CER of unplanned O&M activities does not substitute for a company's obligation to report incidents under the OPR, PPR, the Canadian Energy Regulator Pipeline Damage Prevention Regulations – Obligations of Pipeline Companies, the Transportation Safety Board Regulations, the Canada Labour Code, and/or other relevant legislation, under which reporting is also required.

Guidance Notes:

"Public consultation" refers to the range of activities a company can undertake to share information with members of the public who may be affected by O&M activities, and to identify and resolve issues or concerns related to these activities. Examples of potentially affected members of the public include landowners, tenants, residents, Indigenous communities, government agencies, non-governmental organizations, trappers, guides, outfitters, recreational users, other land or resource users (e.g., forestry, mining), and commercial third parties.

The CER recognizes that effective public consultation goes beyond simply informing potentially affected members of the public and includes involving them in decisions or plans that may affect their lives. Companies must carry out public consultation activities that are reasonable for the scope and nature of the planned activity and must justify the extent of public consultation carried out, particularly if no consultation is undertaken.

Although not an exhaustive list, the following sources provide companies with guidance on effective public consultation, which should be considered when planning O&M activities:

• The CER’s Filing Manual, Chapter 3
• CSA Z764-96, A Guide to Public Involvement
• Canadian Association of Petroleum Producers (CAPP), Guide for Effective Public Involvement
• International Association for Public Participation (IAP2) website

The CER expects companies to maintain records of public consultation activities related to O&M activities. At a minimum, the CER expects companies to document and retain the following information related to public consultation activities:

• Who was involved?
• When did public consultation occur and what methods were used?
• What issues were raised?
• How were the issues addressed?
• What issues were not resolved?
• What follow-up was undertaken or is planned to address unresolved issues?

When consultation includes Indigenous Peoples, companies should consider establishing a consultation protocol with these communities that takes into consideration their rights, interests, and cultural elements.

Guidance Notes:

Companies are expected to keep a record of all O&M activities that are carried out. Companies are also expected to maintain documentation of the O&M activities for which notification to the CER is required. The information listed for notification purposes in Section 4.1 is the minimum requirement for documentation purposes.

Guidance Notes:

Companies are reminded of the following:

• Additional approvals under other legislation or regulations, such as the federal Fisheries Act or the Migratory Birds Regulations may be required.
• Companies have obligations under the Migratory Birds Convention Act and the Species at Risk Act. The CER recommends that companies check with regional offices for federal, territorial and provincial agencies to ensure they are meeting all of their regulatory obligations.
• Companies have obligations under federal, provincial and territorial legislation for identifying and protecting heritage resources. The CER expects companies to ensure they are meeting all their regulatory obligations.
• Certain activities may require an application or notification under other parts of the CER Act, the OPR, the PPR, or other regulations made pursuant to the CER Act.

Guidance Notes:

Since O&M activities do not require an application under section 214 or section 183 of the CER Act, companies may wish to consider other methods to communicate certain capital additions to shippers.

Guidance Notes:

Companies must provide additional information regarding the acquisition of new temporary or permanent land for an O&M activity that is within critical habitat for any endangered or threatened species listed on Schedule 1 of the Species at Risk Act including:

• A list of the species at risk that may be affected and their status.
• A description of the habitat at the new temporary or permanent land.
• The amount of permanent and/or temporary land needed.
• Details of consultations with relevant provincial and federal authorities (if applicable).
• Site plans.
• A description of the activities that will be conducted that are relevant to species at risk and the activities’ potential impacts to critical habitat.
• All reasonable alternatives to the activity that would reduce or avoid the impact on the species at risk that have been considered.
• A description of all feasible measures that will be taken to minimize the impact of the activity on the critical habitat or the residences of species at risk.
• Details of monitoring activities that are proposed to help identify corrective actions to avoid and lessen any adverse effects.

Guidance Notes:

O&M Activities located within Aquatic Critical Habitat

If a company’s O&M activities are located within aquatic critical habitat, as defined in the Species at Risk Act, the company is responsible to submit to DFO a request for review or Fisheries Act authorization application.

All Other O&M Activities Near Water

DFO standards and codes of practice (as provided on DFO’s website, Projects Near Water) specify procedures, practices or standards for avoiding the death of fish or the harmful alteration, disruption or destruction of fish habitat. Companies should review the DFO standards and codes of practice carefully to determine if any are applicable to their O&M activities. The CER expects companies to comply with all applicable standards and codes of practice. They may include mitigation measures, project design or planning in water works, undertakings and timing activities to respect timing windows to protect fish and fish habitat.

DFO standards and codes of practice may periodically change or be updated. It is the responsibility of CER-regulated companies to regularly check the DFO standards and codes of practice for changes or updates.

Companies should note that some activities may not be covered by a DFO standard or code of practice. In these circumstances, it is strongly advised that companies submit notification as early as possible in advance of an O&M activity – ideally, earlier than the 21 day requirement set out in these O&M Guidelines – to give sufficient time to implement the Fisheries Protection Provisions of the Fisheries Act and to allow for coordination with DFO as early as possible.

Additional Information Requirements – All Other O&M Activities Near Water

When activities occur under the following circumstances:

• Access: Ground disturbance using power-operated equipment within 30 m of a wetland or a water body, or within 30 m of the substrate of a wetland or water body, while accessing the site.
• Activity Site: Ground disturbance using power-operated equipment within 30 m of a wetland or water body, or within 30 m of the substrate of a wetland or water body at the activity site.

A self-assessment must be submitted if:

• DFO’s standards and codes of practice to protect fish and fish habitat will not be followed; or
• a species listed under Schedule 1 of the Species at Risk Act is likely to be present within the O&M activity footprint.

The self-assessment must include:

• Details on fish and fish habitat (including species at risk) that is upstream and downstream and on the project footprint, including unobstructed photographs, and design drawings.
• The amount of fish habitat (in m2) that will be harmfully altered, disrupted, or destroyed below the 2-year high water mark, the amount of riparian habitat to be cleared (m2), and the estimated amount of fish mortality.
• Any planned mitigations or avoidance measures, and/or justification as to why any applicable mitigations or avoidance measures listed in the DFO standards and codes of practice will not be implemented.
• A discussion of whether the proposed works are likely to require authorization under paragraph 34.4(2)(b) or 35(2)(b) of the Fisheries Act or permitting under section 73 or 74 of the Species at Risk Act.

For further information see DFO’s Request for Review form. Companies are also responsible for submitting Species at Risk Act permit applications directly to DFO.

Guidance Notes:

Companies are required to notify the CER under the following circumstances:

• If a navigable water^Footnote 11 will be crossed while accessing the O&M site or there will be a ground disturbance or activity within or across a navigable water's wetted perimeter.

If Transport Canada’s Minor Works Order will not be followed, the following additional information is required:

• A listing of navigable waterways that may be affected by the activity and the waterway characteristics for each.
• Description of the activities and crossings that may affect navigation.
• Description of potential waterway use and any consultation conducted with waterway users and Indigenous Peoples regarding navigational use.
• Description of the effects of the O&M activities on navigation and navigation safety including proposed mitigation to address these effects.

The Minor Works Order can be found on Justice Canada's website.