Warning Letter to Individual – 27 August 2020
CER File: UX2019-118
Enforcement File: CV1920-449
27 August 2020
Warning Letter to
On 19 June 2019, the National Energy Board received a report of an unauthorized activity being conducted on or around federally regulated pipelines by a contractor employed by you. This report was made by Trans Mountain Pipeline ULC (TMPL) to the Canada Energy Regulator (CER), which replaced the National Energy Board.Footnote 1
Summary of Alleged Unauthorized Activity UX2019-118
On 19 June 2019, TMPL reported an unauthorized activity (ground disturbance) conducted by your contractor, , that had occurred on TMPL’s right-of-way at or around your property at on or around 19 June 2019. TMPL alleges that this unauthorized activity occurred 0.5 meters from their pipeline with a depth of 0.45 meters using heavy machinery without the necessary permits and supervision.
TMPL alleges that a 30m ground disturbance permit was issued on 18 June 2019 for proposed work at this location, but that said work could not be undertaken without a TMPL representative being present. Upon arrival at the property on 19 June 2019, the TMPL patroller discovered that the proposed work had already been completed and the patroller issued a Stop Work Order to your contractor.
TMPL further alleges that on 19 June 2019, a TMPL Pipeline Inspector spoke to you and to of and asked for an explanation as to why the work had been completed without a TMPL representative present. TMPL alleges that states he was confused about the exact location of the pipeline despite that information being provided to him the day prior. TMPL alleges that they asked you, the homeowner, if you were aware of the location of the pipeline, and that you stated that you were, and that you didn’t care. TMPL further alleges that despite being provided with a proximity permit application and ground disturbance brochures one week prior to this interaction, you had not read the brochures and had not completed said application. TMPL’s position is that you and your contractor knew what you were doing and chose to conduct this unauthorized activity out of convenience and to maintain construction scheduling.
CER staff reviewed the information submitted by TMPL and determined that in order to complete our review, we would need to speak to you in order to hear your recollection of the events in question. CER staff attempted to reach you by telephone on 20 January 2020, 28 January 2020, and twice on 11 February 2020. None of the calls were picked up, and your voice mail system was unable to receive messages. As a result, we reached out to you in writing (see attached). The letter that we couriered to you was picked up at the courier’s office on 23 April 2020, and provided you until 12 May 2020 to respond to the letter. The CER did not receive a response from you, therefore the information provided by TMPL on this matter is accepted without your input.
Previous Alleged Unauthorized Activity UX2017-206
Kinder Morgan Canada (KMC, at that time the operator of the Trans Mountain Pipeline) previously reported an unauthorized activity (UX2017-206) at your address on 27 July 2017. In this case, a warning letter was issued to your contractor, , however KMC provided the NEB (as it was known then) with information that the KMC Pipeline Inspector reviewed the ground disturbance pipeline protection guidelines with you in person and explained that as the general contractor, you are responsible for this site. KMC also mailed you a letter and information package on 13 September 2017, containing the following information:
- KMC’s Ground Disturbance Requirements
- Applying for a Kinder Morgan Canada Proximity Permit – Design and Construction Guidelines
- Working Safely Near Kinder Morgan Pipelines
- Your local One Call Organization brochure
- National Energy Board’s Pipeline Damage Prevention- Ground Disturbance.
Summary of Findings
Upon examining the information supplied by KMC as part of our review into both the current and previous events, CER staff have determined that you were aware of your obligations as they pertain to performing work around pipelines, yet you proceeded to contravene federal legislation.
More specifically, CER staff have determined that Unauthorized Activity UX2019-118 constitutes a non-compliance with the Damage Prevention Regulations - Authorizations (DPR-A), s. 10(3)(a), as the activity was not carried out in accordance with TMPL’s prior written consent, since your contractor started work without a TMPL inspector on site.
This warning is intended to bring this matter to your attention in order for you to take the necessary preventative measures to ensure compliance with the DPR-A.
You must ensure that you and your contractors follow procedures and processes governing excavation work near federally regulated pipelines, and that those who perform excavation work are informed of safe work practices in accordance with measures set out in the CER's DPR-A. Please refer to the CER’s Damage Prevention Guidance for Landowners.
We appreciate your prompt attention to this matter, and expect that you will undertake measures to prevent such incidents in the future. Please be advised that this letter will form part of your compliance history, and any future reported incidents may result in further enforcement action, including issuing Administrative Monetary Penalties (AMPs). For individuals, depending on the activity, the daily penalty could range from $250 to a maximum of $25,000 per violation. You can find more information on the CER’s enforcement policy and procedures, including AMPs.
If you have any questions regarding this review or any related topic, please contact , by telephone toll-free at 1-800-899-1265 or directly at , or by email at @cer-rec.gc.ca.
Director, Audit, Enforcement and Investigations
System Operations Business Unit
Canada Energy Regulator
Suite 210, 517 Tenth Avenue SW
Calgary, Alberta T2R 0A8
Enclosures: Administrative Monetary Penalties: Information for Landowners (EN/FR)
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