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Request for Regulatory Appeal by Braun Land Owners (AER Appeal No. 1869031)

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Regulatory Appeal – Denied – Eligible Person Definition


In this decision, the AER considered the Braun Land Owners Group’s (the “Landowners”) regulatory appeal request under section 38 of the Responsible Energy Development Act (the “REDA”) for a regulatory appeal of an AER decision approving Penn West Petroleum Limited’s (“Penn West”) enhanced recovery scheme application (the “AER Decision”).

Specifically, in the AER Decision, the AER issued an approval, pursuant to the Oil and Gas Conservation Act, for Penn West’s proposed enhanced recovery of oil by gas injection and waterflood in the Blairmore Pool in the Armisie Field (the “Approval”). The injection was proposed to be conducted through the main existing well.

The AER denied the Landowners’ request for a regulatory appeal, on the grounds that the Landowners group members did not meet the definition of “eligible person” under REDA section 36.

Preliminary Issue

One of the conditions of the Approval required injection to commence into the well(s) within three months of the date of the Approval (the “Commencement Condition”).

The Landowners submitted that the Approval had expired since Penn West did not begin injections within the 3-month period required by the Commencement Condition. The Landowners argued that the request for regulatory appeal should be closed as the Approval had expired.

The AER noted that the Commencement Condition did not state that the Approval expires if injection does not commence within the specified time. The AER found that the Approval did not expire as a result of not meeting a condition. Therefore, since the Approval had not expired, the AER went on to consider the Landowners’ request for regulatory appeal.

Request for Regulatory Appeal under REDA s 38

The applicable provision of REDA regarding regulatory appeal requests is contained in section 38(1), which states:

38(1) An eligible person may request a regulatory appeal of an appealable decision by filing a request for regulatory appeal with the Regulator in accordance with the rules. [underlining added]

The term “eligible person” is defined in section 36(b)(ii) of the REDA to include: “a person who is directly and adversely affected by a decision [made under an energy resource enactment].”

Reasons for Decision

The AER held that the Approval is an appealable decision, as the decision was made under the Oil and Gas Conservation Act, an energy enactment, without a hearing.

The AER noted that the well for which the Approval was issued is not located on lands owned by the Landowners nor are the Landowners mineral rights holders in the area of the Approval. The AER noted that in issuing an enhanced recovery approval, it considers whether the subsurface characteristics of the reservoir are suitable for enhanced recovery operations. The AER stated that the Approval did not affect any surface rights or authorize activities that could impact the surface.

The AER found that the enhanced recovery scheme would eliminate the potential for surface emissions associated with Penn West’s oil and gas production in the area, which is expected to decrease existing potential surface impacts.

Disposition

Given the above, the AER found that the Landowners had not established that they may be directly and adversely impacted by the AER Decision issuing the Approval. The AER held that the Landowners are not an “eligible person” under REDA section 38 and therefore dismissed the appeal request pursuant to REDA section 39(4).

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