On Wednesday, August 28, 2019, the National Energy Board (NEB) became the Canada Energy Regulator (CER). For further information please visit our Implementing the Canadian Energy Regulator Act information page

Filing Manual – Chapter 3 – Common Information Requirements

Table of Contents

While each application is unique, the CER expects to see the following common elements:

  • a description of the action being sought by the applicant;
  • a description of the purpose of the application;
  • how the applicant’s management system and related set of programs informs the application and project design;
  • details regarding engagement activities and outcomes; and
  • details regarding notification made to commercial third parties.

Note that any terms used in the application that are not considered to be broadly accepted or understood by industry should be defined.

The following sections describe these common information requirements. For further details on information required in applications, see Chapter 4 and Chapter 5.

3.1 Action Sought By Applicant

Goal

The application states the request being made and what action is being requested of the Commission.

Filing Requirements

Section 15 of the Rules requires the following information in an application:

  • 15 (1) Every application shall
    1. (a) contain a concise statement of the relevant facts, the provisions of the Act or any regulations made under the Act under which the application is made and the nature of, and justification for, the decision or order sought;
    2. (b) contain, in addition to the information that is required by the Act and any regulations made under the Act, any other information that explains or supports the application, including information referred to in published policies and guidelines of the CER; and
    3. (c) set out the name, address, telephone number and any other telecommunications numbers of the applicant and the applicant’s authorized representative, if any.
  • (2) Every application shall be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as is practicable to a distinct portion of the subject-matter of the application.

Guidance

Applicants must, in addition to looking at the Filing Manual, have regard to the CER Act and regulations relevant to the filing for direction on what needs to be included.

3.2 Application or Project Purpose

Goal

The application provides clearly articulated reasons for the application.

Filing Requirements

Provide a description of the purpose of the proposed project.

Guidance

Explain the reason for the application, including a discussion of the need that would be addressed by the project.

3.3 Management Systems and Programs under the OPR

Goal

To demonstrate how an applicant’s management system required under the OPR will support and achieve adequate safety and environmental protection in the context of the current project application.

Filing Requirements

An applicant must provide:

  • an overview of its management system, including a description of:
    • how programs required under the OPR are coordinated within the management system to promote safety and environmental protection; and
    • the process for any necessary modifications to the management system.

Guidance

The CER conducts ongoing reviews of company management systems and compliance with the requirements of the OPR through its auditing oversight. However, in addition to this, it is important for public transparency and clarity that applicants explain how safety and environmental protection are integrated, coordinated and controlled within their management systems and will be ensured for any proposed new facility.

A carefully-designed and well-implemented management system supports a strong culture of safety and is fundamental to keeping people safe and protecting the environment. SS. 6.1 to 6.6 of the OPR detail the required elements of a company’s management system. It must be a systematic approach designed to effectively manage and reduce risk through necessary organizational structures, resources, accountabilities, policies, processes and procedures, and must include measures to evaluate effectiveness and promote continual improvement.

A company’s management system must also coordinate the following five programs:

  • Emergency Management Program to ensure appropriate emergency preparedness and response (OPR s. 32).
  • Integrity Management Program to ensure the pipeline system continually operates within its design parameters (OPR s. 40).
  • Safety Management Program to protect workers and the public from occupational and process hazards (OPR s. 47).
  • Security Management Program to protect people, property and the environment from malicious damage (OPR s. 47.1).
  • Environmental Protection Program to avoid or reduce adverse effects on the environment (OPR s. 48).

S. 6.5 of the OPR lists a number of processes and requirements that must be part of a company’s management system and each of the above five programs.

S. 6.2 requires the appointment of an Accountable Officer and that their name and acceptance of responsibilities be filed with the CER. For further information on the OPR and related supporting documentation, please refer to the CER’s website.

A company’s management system applies to the entire lifecycle of a project, from planning and design, through construction and operation, to abandonment. It is therefore relevant at all stages of a project, including the application stage.

FYI – Examples...

The information to fulfill many of the requirements in this Filing Manual for pipeline projects should be based upon a company’s management system processes. For example:

  • Engineering design details required in section A.1 for facilities applications should be based upon implementation of processes within the Integrity Management Program, such as hazard identification, risk assessment, development of control and monitoring measures, and identification of legal requirements. Such processes will be similarly applicable to applications for abandonment (Guide B), variances related to physical activities (Guide O), leave to open (Guide T), etc. Design details may also be affected by other programs, such as the security assessment for the project conducted under the Security Management Program.
  • Implementation of processes within the Environmental Protection Program will support the information requirements for the environmental and socio-economic assessment, such as in section A.2.6.1 (identification and analysis of effects) and section A.2.8 (inspection, monitoring and follow-up). Processes related to accidents and malfunctions within the Emergency, Safety and Security Management Programs can similarly contribute to these Guide requirements.

Various management system processes will also apply throughout the application stage, such as ensuring the training and competency of those involved in the development of the project design and of the application documents; quality assurance; document and record control; management of change if design details are altered; and ensuring that work performed by consultants and contractors is consistent with all obligations and responsibilities under the company’s management system.

The CER expects an applicant to have applied relevant components of its management system and programs to the planning and design of the proposed project and related application documents, and to have reviewed those components for necessary modification in the event the proposed project goes ahead.

An application that is lacking (such as containing an incomplete discussion of hazards, risks and controls) might indicate that the applicant’s management system and program components are inadequate. The CER expects companies to prevent such deficiencies, correct any that are identified, avoid similar deficiencies in future applications, and to apply lessons learned as broadly as possible.

3.4 Engagement

The CER expects an applicant to have a company-wide Engagement Program that establishes a systematic, comprehensive and proactive approach for the development and implementation of project-specific engagement activities. The following information is required within the application:

  • an overview of the company-wide Engagement Program;
  • an overview of the project-specific engagement activities; and
  • a description of the outcomes of the project-specific engagement activities; or
  • the circumstances and justification for not undertaking project-specific engagement activities.

Each of these information requirements is discussed in further detail in the following sections.

The CER also expects companies to continue effective engagement activities with the public and Indigenous communities during the construction and operation phases of a project. The CER’s requirements for engagement related to operations and maintenance activities on pipelines can be found on the CER’s website in the “Operations and Maintenance Activities on Pipelines Regulated Under the National Energy Board Act: Requirements and Guidance Notes”.

3.4.1 Company-wide Engagement Program

Goal

The application outlines the corporate policy or vision with respect to engagement and the principles and goals that guide the applicant’s Engagement Program.

Filing Requirements

Provide an overview of the company’s engagement approach, which should include:

  • the corporate policy or vision with respect to engagement.
  • the principles and goals established for the applicant’s Engagement Program; and
  • a copy of the Indigenous engagement policy, along with any more specific related documented policies and principles, such as, for collecting Indigenous knowledge or traditional use information.

Guidance

The CER expects an applicant to have an Engagement Program to anticipate, prevent, mitigate and manage conditions which have the potential to affect persons and communities. An Engagement Program should be appropriately integrated into a company’s overall management system to provide protection for the public, employees, property and the environment throughout the lifecycle (design, construction, operation, maintenance, abandonment) of a pipeline system. An Engagement Program should be based on the elements of a standard management system (for example, the management system elements described in the OPR). Additional guidance is provided in the NEB’s Draft Expectations – Public Involvement Program. [Filing A22289].

The CER also expects applicants to consider the distinct language needs of the potentially affected persons and/or communities and include a description of this consideration in their application. Further to s. 41 of the Official Languages Act, the CER is also committed to fostering the full recognition and use of both English and French in Canadian society. The CER recognizes the importance of considering official languages when developing and implementing an engagement program, to result in effective communication with potentially affected persons in the official language of their choice.

3.4.2 Designing Project-specific Engagement Activities

Goal

The application indicates why the design of project-specific engagement activities is appropriate for the nature of the project in alignment with the company’s Engagement Program.

Filing Requirements

Provide an overview of the project-specific engagement activities and the factors that influenced the design, which should include:

  • a list of potentially affected persons or communities that were engaged for the project, including:
    • landowners, local residents, and land or waterway users;
    • government authorities; and
    • Indigenous communities;
  • a sample of the information package that the applicant has provided to all potentially affected persons and communities as outlined in the CER Early Engagement Guide (Guide L);
  • methods, locations, and timing of engagement activities, including where community cultural protocols were identified and followed;
  • manner in which relevant languages were considered, including in particular how project information will be provided and communicated to potentially affected persons or communities in the official language of their choice to ensure effective and meaningful participation in the CER process;
  • procedure for responding to issues and concerns; and
  • plans for future engagement and follow-up throughout the operations phase of a project, which may include activities such as public awareness programs, continuing education and engagement with persons regarding proposed operations that may potentially affect them.

Guidance

The CER expects that applicants will consider engagement for all projects. Depending on the project scope, that could mean carrying out extensive engagement activities or a simple engagement activity such as notifying a single landowner. Applicants must justify the extent of engagement carried out for each application. For additional details, applicants should refer to the Early Engagement Guide (Guide L).

Local and Indigenous Knowledge

The application should, where relevant, available and applicable to the effects of the Project, include local and Indigenous knowledge. This information and knowledge should be integrated, where appropriate, into the design of the project. Where local and Indigenous knowledge is obtained, provide an opportunity for the individual who provided the information to confirm the interpretation of the information and how it was used in the project design.

Applicants should identify and incorporate within their effects assessment, preferably beginning at the assessment design phase, those valued components that are most relevant for an assessment of the project’s potential effects on the exercise of Indigenous rights (refer to section A.2 for additional details). Applicants should also engage with Indigenous communities to ascertain whether any Indigenous knowledge is being provided in confidence, and if so, ensure that confidential Indigenous knowledge can be appropriately protected from unauthorized disclosure. Applicants should strive to reach agreements or utilize existing community protocols with respect to Indigenous knowledge.

3.4.3 Outcomes of Project-specific Engagement Activities

Goal

The application describes the results of the engagement activities conducted to date for the project, in sufficient detail to demonstrate:

  • that all persons and communities potentially affected by the project are aware of: the project, the project application to the CER, and how they can contact the CER with outstanding application-related concerns;
  • that those potentially affected by the project have been adequately engaged, and
  • that any concerns raised have been considered, and addressed as appropriate.

Filing Requirements

Describe the outcomes of the engagement activities conducted for the project, including:

  • a summary of the comments and concerns expressed by potentially affected persons or communities;
  • a summary of the response made regarding each of the concerns or comments, including:
    • the measures taken, or that will be taken to address those concerns or an explanation of why no further action is required to address the concerns or comments; and
    • the methods and dates that the response was made to the person(s) who raised the concern(s);
  • how outstanding concerns will be addressed;
  • how input from persons or communities has influenced the design, construction or operation of the project;
  • details regarding discussions with Indigenous communities, which includes each of the items listed above and:
    • the identity of all Indigenous communities contacted, how they were identified, when and how they were contacted and who was contacted;
    • any relevant, non-confidential written documentation received regarding engagement;
    • any concerns about the project raised by Indigenous communities that have been discussed with any government department or agency, including when contact was made and with whom; and
    • where there is any known involvement of the Crown in consultations with the Indigenous communities with respect to the project, describe the Crown involvement; and
  • the details and results of the engagement activities undertaken with all persons who may be affected by any changes to the project (e.g., persons that would be uniquely impacted following changes to the project as a result of engagement activities).

Confirm that potentially affected persons or communities will receive adequate notice that:

  • the application has been filed with the CER;
  • the process by which potentially affected persons and communities can contact the CER at any point before the Commission makes its decision; and
  • the methods and timing of notification.

Guidance

The Applicant should maintain records and be prepared to further demonstrate the adequacy of engagement activities that have been conducted with all potentially affected persons and communities.

For engagement activities that could involve a large number of people, it might not be practical to list all individuals that were engaged. It may be more practical to describe the main groups and why they are identified. For example, where a group has a common concern or association, describe:

  • the group;
  • their location;
  • their common concern; and
  • the authority of any representatives of the group.

3.4.4 Justification for Not Undertaking Engagement Activities

Goal

The application provides justification as to why it was not necessary to carry out engagement activities with respect to the proposed project.

Filing Requirements

Explain why engagement activities were considered unnecessary, including:

  • the scenario or scenarios that are applicable to the application (i.e., equivalent engagement activities, no or negligible environmental or socio-economic effects, facilities within company owned or leased lands); and
  • evidence that these scenarios meet the requirements of this section of the manual.

Guidance

Engagement activities might not be necessary if the applicant can demonstrate that one or more of the following scenarios applies.

Equivalent Engagement Activities

Engagement has already been undertaken as required by another agency and the applicant can demonstrate it is relevant to the current project and is equivalent to the CER’s guidance and requirements.

For example, where a road widening requires that an existing CER-regulated pipeline be relocated, the responsible transportation authorities might conduct engagement activities for the road widening that includes engagement regarding the relocation of the pipeline. The pipeline application would then include a description of these engagement activities and how it meets the requirements of this manual.

No or Negligible Environmental or Socio-economic Effects

Applicants will be conducting environmental and socio-economic assessments of the project in accordance with the requirements of the CER Act and this manual (see Guide A within Chapter 4).

Through this assessment process, applicants will determine the potential adverse effects of the project. If the project’s potential environmental and socio-economic effects are negligible, engagement activities might be unnecessary. A project with negligible effects might exist where many or all of the following conditions are met:

  • the proposed project is of a small scale and is localized;
  • all construction is to occur on previously disturbed land;
  • there is no potential for an impact on navigation;
  • the land acquisition process is complete and landowner concerns have been addressed, or the project work is confined to company owned or leased land;
  • there are no residents near the proposed project;
  • no other land uses or waterway uses or interests would be affected;
  • there is no potential for traditional use activities to be affected by the project;
  • there is no potential for cumulative environmental effects;
  • there would be negligible environmental effects associated with construction and operation of the project;
  • there is no increase in the storage or disposal of toxic substances;
  • there is no increase in noise emissions;
  • there is no increased emissions in air contaminants; and
  • there is no potential for local nuisance, including potential for increased dust or traffic.

Because the identification of potential impacts may depend on engagement with those people potentially affected and because an impact assessment may not yet be completed, applicants should generally be conservative when contemplating the possibility that engagement may not be necessary. When and where recent previous project assessments or engagements are relied on, relevant details of these should be cited in the submission to the CER.

Facilities within Company Owned or Leased Lands

If the application is for a facility within company owned or leased land, engagement activities might be unnecessary. This may be the case where the application is a facilities application that relates to work contained within the confines of land the applicant owns or leases (as distinct from land upon which the applicant holds an easement only), except where those facilities or activities:

  • relate to an increase in the storage or disposal of toxic substances;
  • could result in impacts to traditional land and resource use;
  • could result in increased noise emissions;
  • could result in increased emissions of air contaminants; or
  • could result in local nuisance, including the potential for increased dust or traffic. 

3.5 Notification Of Commercial Third Parties

Notification of commercial third parties is normally required when the outcome of the application will affect such matters as:

  • tolls or tariffs;
  • the ability of third parties to receive, transport or deliver commodities; and
  • supply, transportation or sales contracts.

The Commission must be assured that all commercial third parties that could be affected by the decision are aware of the application and have had the opportunity to comment should they wish to do so.

Goal

The application includes evidence that all interested commercial third parties that could be potentially affected by the outcome of the application have been advised of the application.

Filing Requirements

  1. Confirm that all commercial third parties that could potentially be affected in any way by the outcome of the application have been notified and include:
    • the method used to notify those parties; and
    • when the parties were notified.
  2. Provide details regarding the concerns of third parties. This might include:
    • confirmation that no concerns were raised;
    • confirmation that concerns raised have been resolved; or
    • a list of the commercial third parties that have outstanding concerns and a discussion of their unresolved concerns.
  3. List the self-identified interested third parties and confirm they have been notified.
  4. Provide an explanation in the event that notification of commercial third parties was considered unnecessary.

Guidance

Identifying Commercial Third Parties

Commercial third parties include those that could be directly or indirectly commercially affected by the outcome of an application. This should include shippers and could also include commodity suppliers, end users and other pipelines. The following are examples of when to consider certain commercial third parties to be affected by an application:

  • consider all shippers to be affected parties requiring notification of all tolls and tariff applications filed pursuant to ss. 225-240 of the CER Act and all applications that could significantly affect tolls or tariffs;
  • consider all shippers, suppliers and end users to be affected parties when the outcome of the application would significantly affect service on the pipeline; and
  • consider operators of competitive facilities, whether regulated by the CER or not, to be affected commercial third parties when the outcome of the application could reasonably be expected to have a significant adverse impact on their operations.

Third parties involved in physical construction activities (e.g., contractors, material vendors, consultants) or that supply food and accommodation would not normally be considered to be affected commercial third parties.

Notification

Inform the commercial third parties that an application has been, or will be, submitted to the CER and provide a brief description. Notification should normally be done no later than the filing date of the application with the CER. A copy of the application may be provided with the notification, be provided upon request or may constitute notification.

When determining the level of detail in the notification, consider the:

  • scope of the project;
  • potential impact on commercial third parties;
  • nature of any concerns raised by commercial third parties; and
  • resolution of concerns raised.

In general, the greater the scope of the project and the potential impact on commercial third parties the more information would be required. Further, more detailed information would normally be required when concerns have been raised by commercial third parties and remain unresolved at the time of filing.

Where the outcome of the application could affect specific commercial third parties, notify the individual parties. However, where a group with similar interests might be affected, such as western Canada producers or a group of end users, the applicant may choose to notify a recognized organization representative of the group such as the Canadian Association of Petroleum Producers or the Industrial Gas Users Association.

Concerns

Where concerns have been raised and resolved, include a discussion of the resolution when it would assist the Commission in making a decision. When providing a list of unresolved concerns, provide any other information that would assist the Commission to understand the issues, including a discussion of any attempts to reach agreement, such as a summary of the consultative process that was used prior to filing the application.

Self-identified, Interested Third Parties

Self-identified, interested third parties refers to third parties who have indicated to the applicant that they have an interest in the application or one or more types of applications filed with the CER.

Whether any commercial third parties could be affected by the application or not, the CER expects that the applicant will notify all self-identified interested third parties.

When Notification is Not Required

Notification might not be required if the outcome of the application is not expected to result in any significant impacts on commercial third parties, for example:

  • facilities applications for routine operational maintenance and repair where:
    • access to facilities might be temporarily interrupted during construction, but service will not be interrupted; or
    • the toll impact would be immaterial or considered to be a routine adjustment in a negotiated tolls agreement;
  • applications for construction on an owner-operated pipeline where the owner is the sole shipper;
  • applications concerning crossing matters, leave to open, deviation, change in class location or right of entry that would not affect tolls or the operation of the pipeline; and
  • applications to change the name of a pipeline owner that does not involve the sale of the pipeline or a change in operation.

The requirements for engagement, described in s. 3.4 – Engagement, continue to apply even if it is decided there are no commercial third parties to notify of an application.

Next Steps

Table 3-1: Other Potential Federal Contacts

Table 3-1: Other Potential Federal Contacts

Project Considerations

Contact

Does the project occur in a National Park or National Historic Site or is it likely to affect a National Park or National Historic site?

Parks Canada

Is the project likely to take place on, involve dredge or fill operations in, draw water from or discharge water to a historic canal administered by and operated by Parks Canada?

Parks Canada
Public Services and Procurement Canada

Is the project likely to affect lands in a reserve within the meaning of subsection 2(1) of the Indian Act?

Crown-Indigenous Relations and Northern Affairs Canada

Will the project occur on lands in the Yukon or the Northwest Territories that are under the control, management and administration of Indigenous and Northern Affairs Canada and require the issuance of a Class A or Class B permit?

Crown-Indigenous Relations and Northern Affairs Canada

Is the project likely to result in international air pollution?

Environment and Climate Change Canada

Is the project likely to result in the deposition of materials into the marine environment?

Environment and Climate Change Canada

Does the project occur in a wildlife area as defined in the Wildlife Area Regulations?

Environment and Climate Change Canada

Could the project affect wildlife species at risk or their critical habitat or the residences of individuals of those species?

Environment and Climate Change Canada
Fisheries and Oceans Canada
Parks Canada

Is the project likely to result in:

  • killing, capturing, taking or possessing a migratory bird or its nest or eggs;
  • collecting eiderdown or depositing oils or other harmful substance in areas frequented by migratory birds;
  • an effect on migratory bird habitat within a bird sanctuary; or
  • the release of a species of bird not indigenous to Canada?

Environment and Climate Change Canada

Will the project affect the natural flow of an international river (i.e., water flowing from any place in Canada to any place outside Canada) or affect the actual or potential use of that river outside Canada?

Environment and Climate Change Canada

Is the project likely to result in the release of a deleterious substance?

Environment and Climate Change Canada

Is the project likely to affect wetland function?

Environment and Climate Change Canada
Parks Canada

Is the project likely to affect the operation of a railway company or property owned or leased by a railway company, or require the installation of telephone, electricity, telegraph or other wire services for a railway facility?

Canadian Transportation Agency
Transport Canada if Railway Safety Act is involved

Will the project result in cutting timber or constructing roads in a Federal Forest Experimental Area?

Natural Resources Canada

Does the project involve producing or holding explosives in a magazine?

Natural Resources Canada

Does the project involve replacing or repairing a bridge?

Public Services and Procurement Canada

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