O. Reg. 410/22: ELECTRICITY INFRASTRUCTURE - DESIGNATED BROADBAND PROJECTS

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Ontario Energy Board Act, 1998

ONTARIO REGULATION 410/22

ELECTRICITY INFRASTRUCTURE - DESIGNATED BROADBAND PROJECTS

Consolidation Period:  From March 28, 2023 to the e-Laws currency date.

Last amendment: 60/23.

Legislative history: 60/23.

This is the English version of a bilingual regulation.

CONTENTS

 

Interpretation

1. (1) In this Regulation,

“Broadband One Window platform” has the same meaning as in the Building Broadband Faster Act, 2021; (“plateforme Broadband One Window”)

“designated broadband project” has the same meaning as in the Building Broadband Faster Act, 2021; (“projet désigné d’Internet à haut débit”)

“material deficiency” means, in respect of a designated broadband project, a circumstance described in clause 6 (1) (a), (b) or (c); (“lacune importante”)

“proponent” means, in respect of a designated broadband project, the proponent of the project within the meaning of the Building Broadband Faster Act, 2021. (“promoteur”)

(2) For the purposes of this Regulation, notice under section 2 includes deemed notice under subsection 2 (5).

(3) A reference in this Regulation to a prescribed development of, use of or access to electricity infrastructure is a reference to a development of, use of or access to electricity infrastructure to which Part VI.1 of the Act applies, as set out in section 3 of Ontario Regulation 842/21 (Electricity Infrastructure (Part VI.1 of the Act)) made under the Act.

Application

2. (1) This Regulation applies with respect to a licensed distributor if the distributor receives written notice from a proponent that a specified prescribed development of, use of or access to any part of the distributor’s distribution system is required for the purposes of a designated broadband project in the distributor’s service area.

(2) The notice may be provided through the Broadband One Window platform and, for greater certainty, shall in that event be considered to have been received from the proponent for the purposes of subsection (1).

(3) If a licensed distributor receives more than one notice described in subsection (1) with respect to the same designated broadband project, the notice in relation to which that subsection applies is the first such notice received by the distributor.

(4) If a licensed distributor received a notice described in subsection (1) before this Regulation came into force, this Regulation applies with respect to the distributor as if the notice had been received by the distributor on the day this Regulation came into force.

(5) If, immediately before this Regulation came into force, a licensed distributor was engaged in any work described in subsection 5 (4) or (5) in relation to a prescribed development of, use of or access to any part of the distributor’s distribution system for the purposes of a designated broadband project in the distributor’s service area, the distributor is deemed, for the purposes of subsection (1), to have received a notice described in that subsection with respect to the development, use or access on the day this Regulation came into force.

Conflict with agreements

3. (1) In the event of a conflict between sections 4 to 9 of this Regulation and an agreement between the licensed distributor and the proponent or a person acting on behalf of the proponent, the agreement prevails to the extent of the conflict.

(2) For greater certainty, in the event of a conflict between any provision of this Regulation that is not referred to in subsection (1) and an agreement referred to in that subsection, this Regulation prevails to the extent of the conflict.

(3) This section applies with respect to an agreement entered into before or after this Regulation comes into force.

Use of Broadband One Window platform

4. (1) If and when requested by the proponent to do so, the licensed distributor shall use the Broadband One Window platform for the purposes of the designated broadband project.

(2) Subsection (1) does not apply in any period during which the Broadband One Window platform is unavailable.

Requirements re development, use, access

5. (1) In response to a notice under section 2, the licensed distributor shall, no later than the time specified under subsection (2), allow the specified prescribed development, use or access, including meeting the requirements of subsections (4) and (5) as applicable. O. Reg. 410/22, s. 5 (1).

(2) The following time is specified for the purposes of subsection (1):

1. If the licensed distributor receives the notice before January 1, 2025, the earlier of July 1, 2025 and,

i. 110 days after receiving the notice, if the development, use or access involves fewer than 30 distribution poles,

ii. 145 days after receiving the notice, if the development, use or access involves 30 to 59 distribution poles,

iii. 215 days after receiving the notice, if the development, use or access involves 60 to 200 distribution poles, and

iv. if the development, use or access involves more than 200 distribution poles, the time period referred to in subparagraph iii plus one day for every additional dozen or fewer poles.

2. If the licensed distributor receives the notice on or after January 1, 2025, 180 days after receiving the notice. O. Reg. 60/23, s. 1 (1).

(3) If the licensed distributor receives more than one notice under section 2 with respect to the same designated broadband project, the time period under paragraph 1 of subsection (2) shall be determined by the total number of distribution poles identified in the notices taken together, but counted from the time that notice is considered to have been received for the purposes of section 2. O. Reg. 410/22, s. 5 (3); O. Reg. 60/23, s. 1 (2).

(4) The licensed distributor shall, if the proponent requests it, make reasonable efforts to assist the proponent with the completion of work to be undertaken by the proponent for the purpose of facilitating the specified prescribed development, use or access, including with respect to,

(a) the identification of the proposed route of the designated broadband project;

(b) the development of design drawings; and

(c) the securing of all necessary permits. O. Reg. 410/22, s. 5 (4).

(5) The licensed distributor shall, for the purpose of facilitating the specified prescribed development, use or access, do one or more of the following:

1. Conduct such work to any part of the distributor’s distribution system as is reasonably necessary for that purpose.

2. Allow such persons that the distributor authorizes for the purpose to conduct the work referred to in paragraph 1.

3. Subject to subsection (6), allow persons identified by the proponent for the purpose to conduct the work referred to in paragraph 1. O. Reg. 410/22, s. 5 (5).

(6) Paragraph 3 of subsection (5) applies only if the following requirements are met:

1. The work is to be carried out by persons who meet the requirements set out in the definition of “competent person” in Ontario Regulation 22/04 (Electrical Distribution Safety) made under the Electricity Act, 1998.

2. The licensed distributor receives from the proponent an indemnity for any damage or deficiency to the distributor’s distribution system resulting from conducting the work during the period in which the work is being conducted by persons referred to in that paragraph and for at least 120 days after the work is completed. O. Reg. 410/22, s. 5 (6).

(6.1) The licensed distributor shall notify the proponent no later than 10 days after receiving a notice under section 2 as to which of the activities listed under subsection (5) it intends to conduct or allow. O. Reg. 60/23, s. 1 (3).

(6.2) If a licensed distributor fails to meet the requirements of subsection (6.1), the licensed distributor may only choose to conduct work in accordance with paragraph 1 of subsection (5) with the proponent’s consent. O. Reg. 60/23, s. 1 (3).

(7) Unless the licensed distributor and the proponent agree to a different apportionment between them of the costs of the work to be conducted with respect to the designated broadband project, the distributor shall charge the proponent an amount to recover a contribution towards the costs of the work to be conducted under subsection (5) in accordance with the following requirements:

1. The proponent’s share of the cost of replacing existing assets to accommodate the project shall be the lesser of the sum calculated using the following formula and the total cost of the replacement assets:

(A + B)

in which,

  “A” is the cost of any necessary early retirement of existing distribution assets in respect of the project, calculated at the remaining net book value of those assets, and

  “B” is the estimated advancement cost associated with accelerating the replacement of capital assets sooner than otherwise would have been required, as a result of the project, together with any incremental costs necessary to accommodate the project that are over and above a like-for-like replacement.

2. The proponent’s share of the cost of any other work carried out by the licensed distributor to accommodate the project, including the relocation or improvement of existing assets or the installation of new assets, shall be the incremental costs associated with that work. O. Reg. 410/22, s. 5 (7).

Material deficiencies

6. (1) This section applies if,

(a) in the licensed distributor’s opinion, the distributor is unable to meet a requirement of section 5 within the time applicable under subsection 5 (2) due to,

(i) a requirement of any Act or of any regulation or other instrument made under an Act,

(ii) a condition in the distributor’s licence,

(iii) any act or omission of the proponent, including a failure of the proponent to provide information, permission or authorization that the distributor requests, and that is reasonably required, for the purposes of subsection 5 (4) or (5),

(iv) the likelihood that conducting work under subsection 5 (5) would lead to an adverse effect on the reliability or safety of the distributor’s distribution system,

(v) an event of force majeure, or

(vi) if the applicable time is July 1, 2025 or 180 days after receiving notice under section 2, the insufficiency of that time;

(b) the proponent fails to indemnify the licensed distributor in accordance with the requirements of paragraph 2 of subsection 5 (6); or

(c) the proponent fails to provide the contribution amount charged by the licensed distributor in accordance with subsection 5 (7). O. Reg. 410/22, s. 6 (1); O. Reg. 60/23, s. 2.

(2) The licensed distributor shall notify the proponent if the distributor determines under subsection (1) that there is a material deficiency, and shall, with respect to each deficiency, include in the notice,

(a) specifics as to the deficiency, including an explanation of why the distributor is of the opinion that clause (1) (a), (b) or (c) applies;

(b) in the distributor’s opinion, whether the deficiency can be resolved either by the distributor or by the proponent and, if so, what would be required in order to resolve the deficiency; and

(c) the number of days that, in the distributor’s opinion, would be required to resolve the deficiency as specified by the distributor under clause (b). O. Reg. 410/22, s. 6 (2).

Effect of notice on counting of days

7. (1) This section applies only if the licensed distributor receives notice under section 2 before January 1, 2025. O. Reg. 60/23, s. 3.

(2) If the licensed distributor provides notice of a material deficiency under subsection 6 (2), the counting of days for the purposes of subparagraphs 1 i to iv of subsection 5 (2) is stopped as of the day before the day on which the notice is given. O. Reg. 60/23, s. 3.

(3) If the notice is with respect to a material deficiency referred to in clause 6 (1) (b), the requirements of subsection 5 (5) do not apply to the licensed distributor while the counting of days is stopped. O. Reg. 60/23, s. 3.

(4) The counting of days resumes on the following date, as applicable:

1. On the day after the day on which the material deficiency is resolved in accordance with the notice provided by the licensed distributor under subsection 6 (2).

2. On a date agreed to by the proponent and the licensed distributor, which may include the date specified in an alternative proposal referred to in subsection 8 (3).

3. On the date specified by the Board in an order under section 9. O. Reg. 60/23, s. 3.

Proponent’s response to notice of material deficiency

8. (1) This section applies if the licensed distributor gives notice of a material deficiency under subsection 6 (2). O. Reg. 410/22, s. 8 (1).

(2) If the proponent notifies the licensed distributor that the proponent believes that there is no material deficiency and the reasons why, the distributor shall, no later than 10 days after receiving the notice,

(a) consider the proponent’s reasons and notify the proponent as to whether the distributor accepts or rejects the proponent’s assertion that there are no material deficiencies; and

(b) if the distributor rejects the proponent’s assertion that there are no material deficiencies, the reasons why. O. Reg. 410/22, s. 8 (2).

(3) If the proponent notifies the licensed distributor that the proponent agrees that the material deficiency exists but provides an alternative proposal for resolving it, the distributor shall, no later than 10 days after receiving the notice,

(a) consider whether the proposal, if implemented, would, in the distributor’s opinion, resolve or expedite the resolution of the deficiency; and

(b) notify the proponent as to whether the distributor accepts or rejects the proposal and, if the distributor rejects the proposal, the reasons why. O. Reg. 410/22, s. 8 (3).

(4) For the purposes of subsection (3), an alternative proposal must include,

(a) the number of days that, in the proponent’s opinion, would be required to resolve the deficiency; and

(b) if section 7 applies, the date by which, in the proponent’s opinion, the counting of days could resume. O. Reg. 410/22, s. 8 (4); O. Reg. 60/23, s. 4 (1).

(5) If the proponent notifies the licensed distributor as set out in subsection (2) or (3) but the distributor does not respond to the proponent as required by that subsection, the distributor is deemed to have rejected the proponent’s assertion or proposal, as the case may be. O. Reg. 410/22, s. 8 (5).

(6) If a licensed distributor who gave notice of a material deficiency referred to in subclause 6 (1) (a) (vi) rejects the proponent’s assertion under subsection (2), rejects an alternative proposal under subsection (3) or is deemed to have done either under subsection (5) with respect to that material deficiency,

(a) the applicable time under subsection 5 (2) is extended by 30 days;

(b) the material deficiency is deemed to be resolved; and

(c) the distributor shall not, despite subsection 6 (2), give another notice under that subsection in respect of the specified prescribed development, use or access. O. Reg. 60/23, s. 4 (2).

Board order

9. (1) The proponent may, subject to subsection (4), apply to the Board to resolve a matter of disagreement between the proponent and the licensed distributor in respect of a material deficiency or purported material deficiency in relation to a requirement of section 5.

(2) Subsection (1) does not permit an application respecting any matter relating primarily to the interpretation, operation or application of an agreement described in section 3.

(3) An order in a proceeding under subsection (1) shall be issued,

(a) without a hearing; and

(b) no later than 30 days after the Board concludes that it has received sufficient information from both the proponent and the licensed distributor.

(4) If a notice has been issued under section 4 of the Building Broadband Faster Act, 2021 with respect to a matter that would be the subject of a proceeding commenced by a proponent under subsection (1),

(a) the proponent may not make an application under subsection (1) respecting the matter; and

(b) the Board shall not accept an application by the proponent under subsection (1) respecting the matter.

Deferral account

10. (1) In this section,

“distribution pole attachment charge” means the charge established by the Board under section 5 of Ontario Regulation 842/21 (Electricity Infrastructure (Part VI.1 of the Act)) made under the Act.

(2) A licensed distributor whose rates are set by the Board under section 78 of the Act shall establish a deferral account with respect to all designated broadband projects in the distributor’s service area that records,

(a) the total capital costs incurred by the distributor in respect of the projects;

(b) the total non-capital costs incurred by the distributor in respect of the projects, including operational, maintenance or administrative costs;

(c) any other costs incurred by the distributor in order to enable the projects;

(d) the total revenues from distribution pole attachment charges and any other amounts, including contributions towards costs, paid to the distributor by the proponent or any other person in respect of the projects; and

(e) the interest costs incurred on the principal balance of the account, as the Board may direct.

(3) The deferral account shall include the amounts referred to in subsection (2),

(a) regardless of whether they were incurred or paid before or after this Regulation comes into force; and

(b) regardless of whether the amounts are incurred or paid under an agreement between the licensed distributor and the proponent in respect of the designated broadband project.

(4) Balances recorded in the deferral account may not be recovered unless the Board is satisfied that,

(a) costs incurred and amounts paid are accurately recorded in the account;

(b) the recorded costs are material and were prudently incurred; and

(c) if the licensed distributor and proponent have entered into an agreement described in subsection 5 (7), the costs and revenues provided for in the agreement and recorded by the distributor reflect a reasonable allocation of costs between them.

11. Omitted (provides for coming into force of provisions of this Regulation).

 

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