On November 13, 2009 the Energy Resources Conservation Board (“ERCB”) released Bulletin 2009-41 in response to the October 28, 2009 decision of the Alberta Court of Appeal that had the effect of significantly increasing the consultation obligations of applicants for sour gas facility licenses. In that decision the Court interpreted the ERCB's Protective Action Zone (“PAZ”) as an area in which residents could be directly and adversely affected in the event of a sour gas release and were therefore entitled to consultation and participation (standing) in the application process. According to the new Bulletin this interpretation varied significantly from the ERCB's intention in implementing the PAZ in 2008. For more information on the decision click here. Determination of the PAZ involves the application of sophisticated wind and weather modeling to identify the area in which hydrogen sulphide concentrations would be most harmful following a release of sour gas. This modeling generates a conical area extending from the point of release in the direction that the wind is travelling. The modeling used by the ERCB prior to the Court of Appeal's recent decision resulted in the PAZ extending beyond the Emergency Planning Zone “EPZ”, which is the area in which residents enjoy an automatic right to participate in the application process. Bulletin 2009-41 revises the endpoint of the PAZ, effectively redefining it to be an area within the EPZ. The ERCB's position is that the PAZ was never intended to extend beyond the EPZ, but to act as a guide to first responders to focus response to the area within the PAZ as the area likely to be most affected in the event of a release. Additionally, this Bulletin eliminates the concepts of the Emergency Awareness Zone (“EAZ”) and two sulphur dioxide zones. The ERCB reasons that the EPZ “provides robust, comprehensive and conservative protective measures” and as such these additional zones are redundant. As these zones typically extend beyond the EPZ, it appears that this move is to guard against a possible future Court decision that provides residents within the EAZ or sulphur dioxide zones the participation and consultation rights that the Court of Appeal provided residents of the PAZ in its October 28, 2009 decision. The result of this Bulletin is generally a return to the status quo. That is, residents within the EPZ will remain entitled to consultation and participation in the application process as they have always been. The uncertainty created by the ERCB's adoption of the PAZ in 2008 and the recent Court of Appeal Decision has been effectively removed by Bulletin 2009-41. For advice on this or any other energy, environmental or regulatory law topic please contact Ron Kruhlak in Edmonton, Gavin Fitch in Calgary, or any member of our Energy & Environmental Regulatory Practice Group. |
Printer friendly version