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Construction of Electric Power Facilities: Law Enforcement Practice Issues

Pyotr Nikolaevich Maksimenko, Third-Year Student of Kutafi n Moscow State Law University (MSAL)

In this article, the author analyzes current statutory provisions on construction of electric power facilities and defines issues of legal regulation.

The Energy Strategy up to 2030 declares that we need to meet a number of major challenges to reach strategic targets of development of the electric power industry. One of such challenges is extended construction and modernization of basic production assets in the electric power industry (power plants, power grids) to meet demands of the economy and society for electric power[1].

First of all, we should review the legal framework of construction of electric power facilities.

Federal Law dd. March 26, 2003 No. 35 “On the Electric Power Industry” defines electric power facilities: properties used directly in production, transmission of electric power, supervisory control in the electric power industry and sales of electric power, including power grid facilities. It also defines the notion of power grid facilities: power transmission lines, transformer and other substations, distribution points and any other equipment meant to ensure electric connections and transmission of electric power[2]. Electric power facilities and power grid facilities fir the definition of capital facility given in cl. 10, Art. 1 of the Urban Development Code of the Russian Federation[3], and the notion of extremely hazardous and technically complicated facilities given in cl. 4, P. 1, Art. 81 of the Urban Development Code of the Russian Federation. Electric power facilities also fall within the scope of counter-terrorism security requirements, because they belong to the list of linear facilities of the fuel and energy complex and facilities of the fuel and energy complex stipulated in cl. 7 and 8, Art. 2 of Federal Law dd. July 21, 2011 No. 256 “On Safety of the Fuel and Energy Complex Facilities”[4].

Let us keep in mind that cl. 4, P. 1, Art. 48.1 of the Urban Development Code of the Russian Federation refers power transmission lines and other power grid facilities of 330 kV and more to extremely hazardous and technically complicated facilities.

The List of Works in Engineering Surveys, Drafting Design Documentation, Construction, Reconstruction, Major Overhaul of Capital facilities Affecting Safety of Capital Facilities includes such works as arrangement of a power supply system, arrangement of power grids, installation and dismantling of supports for overhead transmission lines, etc[5]. Pursuant to P. 1.1, Art. 55.2 of the Urban Development Code of the Russian Federation, self-regulatory organizations issue work permits for such types of works[6]. In the electric power industry, such a self-regulatory organization is, for example, Energostroy Non-Profit Partnership[7], which stipulates requirements to issue of such permits, establishes a quality control system for construction of power grids and substation, etc.

It is important to comment on some aspects of state supervision in construction of electric power facilities. Art. 42 of Federal Law No. 35 “On the Electric Power Industry” stipulates that state examination of design documentation of electric power facilities belonging to capital facilities shall be performed as prescribed by the urban development legislation[8]. This provision also stipulates that such facilities shall be subject to state construction supervision. It should be noted that there is a very interesting court practice regarding the state construction supervision. For example, P. 5, Art. 52 of the Urban Development Code of the Russian Federation states that a copy of construction permit and a number of other documents are required before construction of capital facilities. Nevertheless, such a requirement has its exceptions. The Third Arbitration Appeal Court examined a case, whereunder Interregional Distribution Grid Company of Siberia, ОАО appealed an order of the Department of Construction Supervision and Housing Control of the Krasnoyarsk Territory. The Open Joint-Stock Company constructed power transmission lines as part of construction of a Distribution Point having a permit to construct the point, but not the power transmission lines. Once the construction was completed, the Department issued an order to provide the construction permit. The court sided with the claimant and cancelled the order having referred to two circumstances: 1) the requirement to provide the construction permit upon completion of the construction was unlawful; 2) regardless of the fact that power transmission lines belong to capital facilities (cl. 2 of Resolution of the Government of the Russian Federation dd. February 16, 2008 No. 87 “On the Structure of Sections of Design Documentation and Requirements to Content Thereof”[9]), no permit for their construction is required, when they form a functionally unified capital facility with another facility[10].

An important aspect of construction is inclusion of the list of works in the contract and deadlines. The court examines a case, in which Joyce, ООО tried to recover a penalty from ElectroSilaMontazh, ЗАО. It was established that the scope of the contract included construction of a power supply system for the enterprise and pre-commissioning. To remove any barriers in their work, the parties concluded additional agreements for cable-line repairing.

The court dismissed the penalty recovery claim for a number of reasons: 1) the scope of the principal contract specifies the list, but not the description of works, therefore it is unclear, whether these works belong to works performed as part of capital construction. Consequently, the question now arises of whether a permit for commissioning and construction is needed (despite the fact that the judicial examination was focused on the penalty, the court referred to this fact, because it is significant in this type of construction); 2) the court found it impossible to compare the scope of works to be performed with the works accepted by the customer due to the fact that other agreements were concluded. As a result, the court held that despite the failure to perform the works under the principal contract on time, new contracts extended the term of the principal contract, and in this regard there is no basis for penalty recovery[11].

The rule of issue of commissioning permits stipulated in P. 1, Art. 55 of the Urban Development Code of the Russian Federation has a certain practice. The arbitration court examined a case[12], in which Kvartet Dacha Non-Profit Partnership claimed to cancel state examinations and the Committee of Construction Supervision’s decision to impose administrative sanctions.

It was established that Kvartet Dacha Non-Profit Partnership had an energy supervision body’s approval to commission a facility, and also had documents demonstrating conformity of the facility to technical specifications, a certificate of delineation of balance sheet attribution and a temporary permit for technological connection. The court specified that despite the fact that the facilities were commissioned and there were the above grounds allowing, according to the claimant, to consider them as a commissioning permit, it was necessary to obtain a permit as prescribed in P. 1, Art. 55 of the Urban Development Code of the Russian Federation.

In addition, the court ruled that, pursuant to Section III of the Regulations on the Structure of Sections of Design Documentation and Requirements to Content Thereof approved by Resolution of the Government of the Russian Federation dd. February 16, 2008 No. 87, power supply facilities, which include power transmission lines, form an individual type of capital facilities (linear facilities), which have a special procedure of development and structure of design documentation. Cl. “c”, P. 7, Art. 51 of the Urban Development Code of the Russian Federation stipulates for them a special list of documents needed to obtain a construction permit.



[1] Order of the Government of the Russian Federation dd. November 13, 2009 No. 1715-р “On Approving the Energy Strategy of Russia for the Period up to 2030” // Collection of Legislative Acts of the Russian Federation, 2009, No. 48, Art. 5836 (in Russian).

[2] Federal Law dd. March 26, 2003 No. 35-ФЗ “On the Electric Power Industry” // Collection of Legislative Acts of the Russian Federation, 2003, No. 13, Art. 1177 (in Russian).

[3] Urban Development Code of the Russian Federation // Collection of Legislative Acts of the Russian Federation, 2005, No. 1 (P. I), Art. 16 (in Russian).

[4] Federal Law dd. July 21, 2011 No. 256-ФЗ “On Security of Fuel and Energy Complex Facilities” // Collection of Legislative Acts of the Russian Federation, 2011, No. 30 (P. I), Art. 4604 (in Russian).

[5] Order of the Ministry of Regional Development of the Russian Federation dd. December 30, 2009 No. 624 “On Approving the List of Works in Engineering Surveys, Drafting Design Documentation, Construction, Reconstruction, Major Overhaul of Capital Facilities Affecting Safety of Capital Facilities” // Rossiyskaya Gazeta, April 26, 2010 (in Russian).

[6] Urban Development Code of the Russian Federation // Collection of Legislative Acts of the Russian Federation, 2005, No. 1 (P. I), Art. 16 (in Russian).

[7] URL: http://нп-энергострой.рф/

[8] Federal Law dd. March 26, 2003 No. 35-ФЗ “On the Electric Power Industry” // Collection of Legislative Acts of the Russian Federation, 2003, No. 13, Art. 1177 (in Russian).

[9] Resolution of the Government of the Russian Federation dd. February 16, 2008 No. 87 “On the Structure of Sections of Design Documentation and Requirements to Content Thereof” // Collection of Legislative Acts of the Russian Federation, 2008, No. 8, Art. 744 (in Russian).

[10] Resolution of the Third Arbitration Appel Court dd. May 4, 2011 on case No. A33-17548/2010. URL: http://ras.arbitr.ru/

[11] Resolution of the Federal Arbitration Court of the Volga District dd. October 15, 2009 on case No. A57-23217/2008. URL: http://ras.arbitr.ru/

[12] Resolution of the Thirteenth Arbitration Appeal Court dd. July 20, 2010 on case No. A56-94300/2009. URL: http://ras.arbitr.ru/