Request for Regulatory Appeal – Application Closure – Appealable Decision – Dismissed
In this decision, the Alberta Energy Regulator (“AER”) considered Aqua Terra Water Management Inc. (“Aqua Terra”)’s request under section 38 of the Responsible Energy Development Act (the “REDA”) for a regulatory appeal of the AER’s closure of Application No. 1913286 filed by Aqua Terra (the “Application Closure”).
The AER found that the Application Closure was not an appealable decision as defined in the REDA. Therefore, the request for a regulatory appeal was dismissed.
Section 38 of the REDA 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.
The term “appealable decision” is defined in section 36 of the REDA. For this regulatory appeal request, the relevant definition is contained in section 36(a)(iv). It says an appealable decision includes:
A decision of the Regulator that was made under an energy resource enactment, if that decision was made without a hearing.
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 of the Regulator that was made under an energy resource enactment, if that decision was made without a hearing.
The following AER requirements were also at issue and relevant to Aqua Terra’s application for a scheme of fluid disposal under section 39(1)(d) of the Oil and Gas Conservation Act (“OGCA”):
(a) section 15.005(e) of the Oil and Gas Conservation Rules (“OGCR”), which requires an applicant under section 39(1)(d) of OGCA to file an application in accordance with Directive 065: Resources Applications for Oil and Gas Reservoirs (“Directive 65”);
(b) section 4.1.3 of Directive 065, which sets out a number of application requirements for a disposal scheme; and
(c) subsections 3(1)(e) and 3(4) of the Alberta Energy Regulator Rules of Practice (“Rules of Practice”), which deal with the completeness of an application.
The AER determined that Aqua Terra’s request for regulatory appeal raised the following questions:
1. Was the Application Closure an “appealable decision” pursuant to section 36(a)(iv) of the REDA?
2. Was Aqua Terra directly and adversely affected by the Application Closure, so as to qualify as an “eligible person” under section 36(b)(ii) of the REDA?
If the answer to the first question was no, then the answer to the second question was moot since the regulatory appeal request would not properly be before the AER.
The AER dismissed the request for regulatory appeal pursuant to section 39(4)(c) of the REDA, based on its finding that the request was not properly before it.
The AER found that the decision to close and return the application was done under section 3(4)(b) of the AER’s Rules of Practice and was not an appealable decision made under an energy resource enactment.
The AER noted that the Application Closure document made no mention of a denial of the application under section 39(1)(d) of the OGCA. While there was also no specific mention of the application being returned for incompleteness under section 3(4)(b) of the Rules of Practice, the Application Closure document used words such as “deficient,” “closure,” and “closed.” The use of the term “deficient” in the Application Closure’s miscellaneous reasons was conveying the AER’s opinion that the application was incomplete. Without this information required by Directive 065, the application was, in fact, incomplete under the Rules of Practice.
The AER found that providing an applicant with an Application Closure document, such as the one provided to Aqua Terra, that provided a basic summary of the application and indicated that it was “closed” for specified reasons meant that the application was closed and was being returned. Aqua Terra’s application was returned due to incompleteness in accordance with section 3(4)(b) of the Rules of Practice.
Is the Application Closure an Appealable Decision?
The AER found that the Application Closure did not fall under the definition of “decision” and by extension could not be an appealable decision under section 36 of the REDA.
In order for the AER’s Application Closure to be an appealable decision, it must be a decision that was made under an energy resource enactment and without a hearing.
The AER indicated that the closure and return of an application did not prejudice an applicant’s right to reapply with complete information, nor did it obligate an applicant to do so. It did not grant or impact any other right.
Even if the Application Closure could be considered a decision under the REDA definition, it was not an appealable decision as required by section 38(1) of the REDA. This was because the AER’s decision to close and return Aqua Terra’s application was made under section 3(4) of the Rules of Practice. The Rules of Practice are not an energy resource enactment as required by section 36(a)(iv) of the REDA. Therefore, the Application Closure was not an appealable decision, and the request for a regulatory appeal was not properly before the AER under section 38(1) of the REDA.