Section 335 Applications – Process Guidance for Applicants

NOTE: Guide C of the National Energy Board Filing Manual contains guidance for filings related to ground disturbance, facility construction and vehicle or mobile equipment crossings (referred to as activity or activities throughout) near federally-regulated pipelines. These filings were previously referred to as National Energy Board Act (NEB Act) section 112 applications. Guide C of the NEB Filing Manual does not include information regarding cost apportionment applications as this authority did not exist under the NEB Act.

This guidance does not replace Guide C, but rather it supplements Guide C with additional information about the updated application process that can be used for a decision regarding activities within the prescribed area and also associated costs directly incurred as a result of the authorized construction or disturbance (cost apportionment applications).

 

Application Process

The Canada Energy Regulator’s (CER) damage prevention framework requires that those who plan to conduct activities near federally-regulated pipelinesFootnote 1 obtain written consent from the pipeline company prior to undertaking the activity. The CER encourages pipeline companies and anyone planning to conduct an activity near a pipeline to reach agreements regarding:

  • conducting an activity that would cause a ground disturbanceFootnote 2, or the construction of a facility across, on, along or under a pipeline, within the prescribed area;
  • the operation of a vehicle or mobile equipment across a pipeline (crossing a pipeline); and
  • the apportionment of costs related to authorized construction or disturbance.

In circumstances where a person is planning to conduct an activity near a federally-regulated pipeline and is experiencing difficulty agreeing on either the terms of the work, or who pays for the associated costs related to authorized construction or disturbance, they can contact the CER for assistance and file a section 335 application. This guidance document outlines the step-by-step application process and information requirements for section 335 applications.

Section 335 Application Process Diagram

CER receipt and intake of section 335 application

 



Agreement or withdrawal

of application

may occur at any time

Alternative
Dispute Resolution (ADR)


Adjudication
(Hearing and Decision)

 

Agreement

 

CER Decision

Section 335 Application Process Steps

Section 335 Application Filed

A section 335 application is filed in writing to the CER. A copy of the application should be sent to all affected parties (including the pipeline company) so they can review the information and forward any comments they may have to you and the CER.

Applications should only be filed in circumstances where those who plan to conduct activities near federally-regulated pipelines and the pipeline company cannot reach an agreement.

Refer to the information requirements section of this guidance for additional information on what information needs to be included in the application.

Alternative Dispute Resolution (ADR)

ADR is a voluntary, interest-based, and confidential way for parties to jointly resolve disputes. It includes negotiation, facilitation and mediation. The CER encourages parties to use ADR to resolve issues to explore and understand interests, and develop acceptable solutions where possible. Participation in ADR is voluntary – all parties involved in the dispute must consent to the process option.

If both parties choose to proceed with the ADR process option, a mediation agreement is drafted in consultation with the parties and signed prior to the mediation session. Meetings are confidential and without prejudice, unless the parties agree otherwise. The results of the ADR process are not binding.

Parties may participate in both ADR and adjudication at the same time.

Adjudication (Hearing and Decision)

If a dispute cannot be resolved through ADR, or if the parties do not wish to participate in ADR, parties can request the Commission to conduct a hearing to determine the matter. The type of process used to hear section 335 disputes would be similar to those used to adjudicate other types of applications. The specific process would be set by the Commission, based on the complexity of the application and nature of the issues and parties involved.

Agreement

If ADR is successful, parties agree on a settlement and the section 335 dispute is considered to be resolved.

Decision

A decision by adjudication would be made by the Commission. The Commission would forward a copy of the decision by mail to all parties to the proceeding after making a decision.

 

Agreement or withdrawal of the application may occur at any time in the process described above.

Information Requirements for Section 335 Applications

Anyone applying for a section 335 application should provide the information required to the CER in writing. An application is filed in writing to the CER and a copy of the application should be sent to all affected parties (including the pipeline company) so they can review the information and forward any comments they may have to you and the CER.

Type of Application:

Information Required:

Ground disturbanceFootnote 3 within the prescribed area

  • the purpose and location of the activity;
  • the proposed timing and duration of the activity;
  • a description of the activity  resulting in a ground disturbance; and,
  • the rationale for seeking approval from the CER; that is, why an agreement could not be reached between the parties.

Facility construction across, on, along or under a pipeline

  • the purpose and location of the proposed facility;
  • the proposed timing and duration of the activity
  • a description of the proposed facility; and,
  • the rationale for seeking approval from the CER; that is, why an agreement could not be reached between the parties.

For applications to conduct an activity causing ground disturbance or to construct a facility an Environmental and Socio-Economic Assessment (ESA) may be required. In general, smaller projects that landowners may want to carry out may result in a less extensive ESA or no ESA requirement. CER staff can provide assistance and direction on the requirements, including whether the project requires an ESA.

Vehicle or mobile equipment crossing of a pipeline; and/or,

  • the purpose and location of the activity;
  • a description of the vehicle or equipment; and,
  • the rationale for seeking approval from the CER; that is, why an agreement could not be reached between the parties. 

Apportionment of associated costs (cost apportionment)

  • a description of the activity, including:
    • whether or not an agreement on the activity itself has been reached; and,
    • whether or not the applicant believes the activity can proceed prior to an agreement on costs;
  • the rationale for seeking a decision from the CER; that is, why an agreement on the apportionment of associated  costs could not be reached between the parties;
  • a description of the associated costs and why the costs are being incurred.

For all application types, applicants should provide as much information as possible about the efforts made to date to obtain:

  • the pipeline company’s written consent for the activity; and,
  • an agreement on the apportionment of costs related to authorized construction or disturbance.

Applicants should include the reasons given by the pipeline company for withholding its written consent. If applicable, please provide an explanation of why certain measures outlined in the DPRs cannot be met. This may include copies of letters exchanged with all affected parties or minutes of meetings.

The CER may request additional information when an application is filed, depending on the circumstances of the project.

For additional information regarding the guiding principles the CER will use to inform decisions on cost apportionment, see:

For information on the CER’s overall framework for working safely near federally-regulated pipelines, see:

Need help or more information?

CER staff can provide assistance and direction on the requirements, including whether the project requires an ESA.

Contact the CER toll free at: 1-800-899-1265

Complaint Resolution Team
Canada Energy Regulator
Suite 210, 517 Tenth  Avenue SW
Calgary, AB  T2R 0A8

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