Warning Letter to Individual – 27 January 2017

27 January 2017

Canada

Warning Letter to

:

Background

On 12 November 2015, as per the subsections 13(1) and (2) of the Pipeline Crossing Regulations, Part II, Trans-Northern Pipeline Inc. (TNPI) filed an unauthorized activity report to the National Energy Board (Board or NEB) for ground disturbance by an unknown contractor/excavator, presumably using a D3C Caterpillar front end loader that was observed parked on your property at , Ontario.

This report stated that, during a site inspection on 11 November 2015, the TNPI inspector discovered that unauthorized excavation work had been executed inside the Right-of-Way and safety zone, including directly over two pipelines at an unknown depth, without:

• Making a locate request by contacting the provincial One-Call, in this instance ON One-Call;
• Notifying the pipeline company directly prior to any planned excavation, construction or crossing activity; or
• Obtaining written approval and related instructions from the pipeline company for any excavation, construction or crossing activities near federally regulated pipelines.

On 28 November 2016, NEB staff spoke to , who attested that the unauthorized Activity in question was completed using Brothers Paving & Concrete Ltd. equipment, but that the work was not contracted to the company and the work was personally completed by on his own property. Therefore, the request to Brothers Paving and Concrete Ltd. to provide procedures that will be implemented in the future to prevent reoccurrences around federally regulated pipelines are no longer required. The request to for an explanation of events that led to the unauthorized activity, however, remains outstanding.

Summary of findings

Upon review of the information provided, the NEB staff determined you, as landowners, were in non­compliance with subsection 112(1) and (2) of the National Energy Board Act (NEB Act) and  6(b) of the Pipeline Crossing Regulations, Part I (PCR Part I):

• Subsection 112(1) of the NEB Act states that "It is prohibited for any person to construct a facility across, on, along or under a pipeline or engage in an activity that causes a ground disturbance within the prescribed area unless the construction or activity is authorized by the orders or regulations made under subsection (5) and done in accordance with them."
• Subsection 112(2) of the NEB Act states that "It is prohibited for any person to operate a vehicle or mobile equipment across a pipeline unless
  • a) that operation is authorized by the orders or regulations made under subsection (5) and done in accordance with them; or 
  • b) the vehicle or mobile equipment is operated within the travelled portion of a highway or public road.

The PCR Part I, in subsection 6(b) provides that such leave "is not required for an excavation, other than an excavation referred to in section 7, if the excavator obtains written permission from the pipeline company prior to the excavation and accepts any conditions set out in the permission."

This was not the first unauthorized activity reported by TNPI at this location. On 30 October 2014, TNPI reported that an unauthorized activity (using machinery and paving directly over the pipeline) had taken place on your property. Each of these events has resulted in communication to and/or from both TNPI and the NEB. There should be no confusion as to the requirements when working on or around a federally regulated pipeline. Additionally, you signed for and received an information package from TNPI via courier (FedEx) on 6 January 2017 that contained the following:

• 1 Copy of "TNPI' s Pipeline Crossing Guidelines" I Copy of TNPI's "Contractor Guidelines"
• 1 Copy of TNPI' s "Pipeline Safety in Your Community"
• 1 Copy of the National Energy Board publication "Pipeline Damage Prevention"

Conclusion

This warning indicates a non-compliance with s.112 of the NEB Act and ss. 6(b) of the PCR, Part I. It is intended to bring this matter to your attention in order for you to take the necessary preventative measures to ensure compliance with the National Energy Board Act, and its associated Regulations.

As landowners you must ensure that the procedures and processes governing excavation work near federally regulated pipelines are followed, and that those who perform excavation work are informed of safe work practices in accordance with section 112 of the NEB Act and measures set out in the NEB's Damage Prevention Regulations (Authorizations). These Regulations came into effect on 19 June 2016 and replaced the PCR.

Your response to the aforementioned request from NEB staff remains outstanding. Please be advised that this letter will form part of the your compliance history as landowners, and any future reported incidences may result in further enforcement action, including administrative monetary penalties, in accordance with the NEB's enforcement policy and procedures. You can find more information on the Board's compliance and enforcement activities here: Compliance and Enforcement.

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.

Yours sincerely,

Original signed by

Director, Audit, Enforcement and Investigations
Systems Operations Business Unit

c.c.

Date modified:

2021-02-22