Decision No. 136-R-2000

February 29, 2000

February 29, 2000

APPLICATION by Alliance Pipeline Ltd. pursuant to subsection 101(3) of the Canada Transportation Act, S.C., 1996, c. 10, for authority to construct and maintain a utility crossing under the right of way and track of the Canadian Pacific Railway Company, at mileage 41.09 Kerrobert Subdivision (Legal Land Description: SE 17 30 14 W3M, Tract 1717), in the rural municipality of St. Andrews No. 287, in the province of Saskatchewan, as shown on Drawing No. 9950-XING-14407 dated October 18, 1999, on file with the Canadian Transportation Agency.

File No. R 8050/106-041.09


APPLICATION

On October 29, 1999, Alliance Pipeline Ltd. (hereinafter Alliance) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

ENVIRONMENTAL ISSUE

Pursuant to subsection 18(1) of the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (hereinafter the CEAA), the project has been screened and a screening report has been prepared.

The Agency is of the opinion that public participation in the screening of the project under subsection 18(3) of the CEAA is not required in the circumstances.

After taking into consideration the screening report, the Agency determines that the project is not likely to cause significant adverse environmental effects.

The Agency notes that Alliance and the Canadian Pacific Railway Company (hereinafter CP) have been unsuccessful in negotiating an agreement with respect to some terms of the proposed utility crossing agreement.

POSITIONS OF THE PARTIES

Alliance states that it objects to CP's proposed underground pipe agreement and to the payment of application, processing and annual administrative fees.

CP's position is that utility crossing agreements should be processed on a cost recovery basis and that the users should pay.

CP also states that its policy is not to generate revenue from crossing agreements and has consistently maintained losses on the administration of crossing agreements.

Alliance also submits that it objects to the indemnification as specified in clauses 6 and 7 of CP's underground pipe agreement which is greater than the requirement of Pipe Crossings Under Railways Regulations of the Canadian Transport Commission, General Order No. E-10, C.R.C., Vol. XIII, c. 1187 (hereinafter General Order No. E-10).

In addition, Alliance requests that it be able to register its interest on the railway property to identify its pipeline to anyone searching the land title, and that its interest be carried forward in the event of a sale of the railway right of way. Furthermore, it requests that the Agency specify that this is a matter to be addressed by the Saskatoon Land Titles Office and that the Agency include the legal land description in the order.

Alliance advises that it also requires leave to cross in perpetuity or until relocation or removal is ordered by the Agency or its successors.

With respect to the issue of duration, CP states that should the existence of the pipeline jeopardize safety or render the property unusable for the purpose of railway use, the utility should be prepared to upgrade or relocate the pipeline to accommodate the needs of the railway. CP also states that, on a seniority basis, the junior party should pay the costs of relocation.

Alliance objects to the clauses referring to removal and alterations of the pipeline. Portions of the agreement indicate notification periods of 90 days or less should it become necessary for the pipeline to be relocated or altered. Further, they specify that the relocation and alterations of the pipeline would be at Alliance's cost. Alliance states that it would need a minimum of one year's notice prior to any relocation or alteration; in fact, a two-year notice is recommended. Furthermore, Alliance does not accept the sole cost of any future relocation or alteration that is required and submits that the issue of costs should be settled if and when relocations or alterations are deemed necessary. In Alliance's opinion, with the inclusion of these clauses, the underground pipe agreement does not provide a permanent right to cross the railway right of way.

CP states that six months notification period for relocation is reasonable and that the suggested one or two years would not be compatible with railway operating requirements.

CP does not agree with any of the statements contained in Alliance's application with respect to any rights it may have to install, or apply for authority to install, the proposed utility crossing, or with respect to the terms and conditions under which such crossing may be installed and maintained pursuant to the Canada Transportation Act (hereinafter the CTA).

CP indicates that it does not object to the Agency granting Alliance the authority to construct and maintain the proposed utility crossing indicated in its application, provided the crossing is made subject to the terms set out in the former General Order No. E-10, as that order existed immediately prior to July 1, 1996.

ANALYSIS AND FINDINGS

The Agency has reviewed the positions of the parties and determines that compensation in the form of either annual or documentation fees to CP is not warranted as no real or appreciable damage to the lands of the railway company has been demonstrated.

With respect to Alliance's request to be able to register the interest in the utility crossing approval with the Saskatoon Land Titles Office, the Agency's jurisdiction in this matter is to render a decision that authorizes the utility crossing across the railway right of way at the specific location. The registration of an interest in the utility crossing is a matter to be addressed to the Saskatoon Land Titles Office. The legal land descriptions are included in this Decision.

With respect to the issue of duration of the crossing and the need for notice in the event of relocation or alterations to the pipeline, the Agency notes that a decision issued by the Agency authorizing the construction of a utility crossing at a specific location remains in effect until such time as the decision is amended or rescinded by the Agency or its successor.

In light of the foregoing, the Agency is of the opinion that Alliance should be authorized to construct the utility crossing as shown on Drawing No. 9950-XING-14407 dated October 18, 1999. Any authority granted by the Agency does not relieve the applicant and/or the railway company of their obligations under the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.).

CONCLUSION

Pursuant to subsection 101(3) of the CTA, the Agency authorizes Alliance to construct and maintain, at its own expense, the utility crossing as shown on Drawing No. 9950-XING-14407 dated October 18, 1999.

In addition, with respect to liability, the Agency has determined the following:

Every owner of a pipe installed under a railway shall at all times indemnify the company that owns, operates or uses the railway against all loss, cost, damage, injury and expense to which the company may be put by reason of any injury to persons or damage to property caused by the pipe or by any oil, gas, water or any other substance being carried, or by any works provided for in these Regulations, or by the imprudence, neglect or want of skill of the employees or agents of the person who owns the pipe in connection with the laying, maintenance, renewal, repair or removal of the pipe, or the use thereof.

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