ELC Regulatory Watch: Upcoming AER appeal will shed light on EPEA approval amendments

ELC Regulatory Watch: Upcoming AER appeal will shed light on EPEA approval amendments

The Alberta Energy Regulator (AER) recently amended an Environmental Protection and Enhancement Act (EPEA) approval to add conditions dealing with remediation of contamination at the Gibson Hardisty terminal.  Gibson Energy is appealing the amendment, saying “the amendment decision contravenes EPEA and is outside of the AER’s jurisdiction and authority under EPEA, and that the AER erred in law and in jurisdiction by making the amendment decision.”

The jurisdiction of the Director (and AER) to amend an EPEA approval is found under section 70(3) of the Act.  EPEA limits the circumstances in which the Director may initiate an amendment and this includes:

(i) if in the Director’s opinion an adverse effect that was not reasonably foreseeable at the time the approval was issued has occurred, is occurring or may occur,


(ii) if the term or condition relates to a monitoring or reporting requirement…

A previous amendment to the approval (in June of 2015) focused on monitoring and reporting but the current amendments require compliance with a remedial action plan and a requirement  to undertake any other remedial actions required to “contain and remediate contamination”.

This being the case, it appears that the AER will have to rely on s.70(2)(a)(i) which focuses on adverse effects that “were not reasonably foreseeable at the time of the approval”.

We are not aware of this section being considered before.  This legislative approach to amending approvals, i.e. requiring an opinion that “adverse effects were not reasonably foreseeable” at the time of the approval also arises in several areas of the Water Act.  The decision (and any resulting appeals) will be of interest to proponents and will be relevant to how government exercises its discretion in relation to amendments in the future.

The notice of the appeal states that parties that wish to intervene in the regulatory appeal must file a request by December 5, 2018.

A copy of the original approval https://avw.alberta.ca/pdf/00246980-00-00.pdf

Amendments to the approval (February 14, 2018) https://avw.alberta.ca/pdf/00246980-00-03.pdf

Amendments to the approval re:monitoring (June 2015) https://avw.alberta.ca/pdf/00246980-00-02.pdf

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