Request for Regulatory Appeal – Dismissed – Resume Drilling Licence
In this decision, the AER considered Michael Judd’s request under section 38 of the Responsible Energy Development Act (“REDA”) for a regulatory appeal of the AER’s decision to approve Licence No. 235273, issued to Shell Canada Corporation (“Shell”), approving the resumption of drilling of Well CR74 (the “Resume Drilling Licence”).
The AER dismissed the request for regulatory appeal.
Legislative Scheme
Section 38(1) of REDA provides:
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. [Emphasis added.]
The test has three components:
(a) the request must be filed in accordance with the Alberta Energy Regulator Rules of Practice (the “Rules”);
(b) the decision must be an appealable decision; and
(c) the requester must be an eligible person.
Reasons for Decision
The AER found that:
(a) Mr. Judd’s request for regulatory appeal was filed in accordance with the Rules;
(b) the decision to issue the Resume Drilling Licence was an appealable decision, since it was a decision under the Oil and Gas Conservation Rules, which is an energy resource enactment, and it was made without a hearing; and
(c) the decision to issue was a decision under an energy resource enactment and it was made without a hearing. Therefore, it was an appealable decision.
Eligible Person
The AER accepted that the location of a person’s residence in the Emergency Planning Zone (“EPZ”) was in itself evidence indicating that a person may be directly and adversely affected. However, the AER found that neither Mr. Judd’s lands nor residence was within the EPZ for the CR74 Well, but that his only route of egress (Seven Gates Road) did pass through the EPZ.
Mr. Judd’s residence was approximately 2.57 km from the centre of the well and was not within the EPZ of 2.37 km. The AER considered that any increase in risk to Mr. Judd must be considered relative to Mr. Judd’s distance from the well. The AER found that the decision to issue the Resume Drilling Licence might present an increased risk of a sour gas release which could impact Seven Gates Road. The AER found that Seven Gates Road itself was within a number of existing Shell EPZs for sour gas facilities and any increase in risk to Mr. Judd’s route of egress posed by the re-entry of the CR74 well was an incremental risk.
The AER concluded that, in the circumstances, the magnitude of the incremental increase in risk to Mr. Judd was not sufficient to establish that he may be directly and adversely affected. The AER noted that:
(a) the Resume Drilling Licence did not approve or change the surface location of the CR74 Well, which was approved as a result of Decision 2000-17; and
(b) the H2S release rate was identical to that of the previous 02/05-20-006-02W5/2 well leg drilled from that wellbore.
Further, the AER was satisfied that Shell’s emergency planning, including its efforts to ensure viable shelter in place for Mr. Judd, was effective to mitigate risk to residents in the area that might need to use Seven Gates Road as a route of egress in the event of an emergency.
The AER found that Mr. Judd did not establish that he may be directly and adversely affected by the decision to issue the Resume Drilling Licence. Therefore, the AER determined that Mr. Judd was not an eligible person for the purposes of REDA.
Summary
The AER found that Mr. Judd was not an eligible person as required by the test set out in section 38(1) of REDA. Therefore, the AER dismissed the request for a regulatory appeal of the Resume Drilling Licence.
