Written By Brad Gilmour, Stephanie Ridge and Greg Whiteside
UPDATE: On April 7, the Alberta Minister of Energy ordered the suspensions of additional regulatory reporting obligations under the Coal Conservation Act, the Oil and Gas Conservation Act, and the Oil Sands Conservation Act. Please see our commentary on that Order in our blog, Alberta Energy Announces Additional Suspensions to Regulatory Reporting Requirements. AEP has also has also released Temporary Amendment of Select Air Monitoring Directive Requirements, which we discuss in detail in our blog, Further Reporting Relief: Certain Air Monitoring Directive Requirements Suspended and Extended.
As we noted in our previous blog reviewing, Environmental and Regulatory Compliance Issues for the Natural Resources Sectors during COVID-19, companies in the natural resource and energy industry face complex challenges associated with complying with regulatory requirements during COVID-19. Various levels of government continue to respond to this situation in an attempt to reduce the challenges faced by this growing crisis. One recent response is the Government of Alberta's relaxation of certain routine environmental and regulatory reporting requirements.
On March 30, 2020, holders of certain authorizations, registrations, licences, and public lands dispositions issued by the Alberta Energy Regulator (AER) and Alberta Environment and Parks (AEP) were provided with a measure of reporting relief with the signing of Ministerial Orders 15/2020, 16/2020, and 17/2020 by Alberta Minister of Environment and Parks, Jason Nixon.
Certain Information Reporting Requirements Suspended for Environmental Protection and Enhancement Act, the Water Act, and the Public Lands Act Authorizations
Ministerial Order 17/2020 modifies the operation of the Environmental Protection and Enhancement Act, the Water Act, and the Public Lands Act to suspend:
- all requirements to report information pursuant to provisions in approvals or registrations issued pursuant to the Environmental Protection and Enhancement Act;
- all requirements to report information pursuant to provisions in licences or approvals issued under the Water Act; and
- all requirements to submit returns or reports related to dispositions issued pursuant to the Public Lands Act.
Drinking water facilities are exempt from this suspension and must continue to follow all terms and conditions of their authorizations, including reporting requirements.
It is important to note that the holder of one of the approvals, registrations, licences, or dispositions as set out above (collectively, "Authorizations" or individually, an "Authorization") must continue collection of the data and information required by their Authorization. Approval holders must be prepared to make this information available to the AER or AEP upon request.
The information collected and reported as required by these Authorizations typically consists of technical data that is routinely collected to monitor and report on environmental conditions. While Approval holders must continue to collect this information, the Ministerial Order provides relief from the work involved to compile, consolidate, and submit that information to the AER or AEP on the timelines set out by each Authorization.
It is critical to note that the suspension of reporting requirements under Ministerial Order 17/2020 is specific in scope. Ministerial Order 17/2020 does not exempt an Authorization holder from complying with other reporting requirements, including the obligation to report a release or an emergency. Similarly, the Ministerial Order does not suspend the Authorization holder's obligation to comply with any other terms or conditions of an Authorization.
As a result, the relief offered to Authorization holders is limited to reporting on certain routine technical information required by individual Authorizations for the period of time that the Ministerial Order is in place (see below). This is expected to reduce short-term pressure on Authorization holders to comply with reporting obligations, while otherwise leaving other terms and conditions of individual Authorizations—and overarching environmental and safety requirements—in place.
Deadline Extended to June 30, 2020 for 2019 Reports Required under the Renewable Fuels Standard Regulation and TIERR
In addition to Ministerial Order 17/2020, Minister Nixon also issued Ministerial Orders 15/2020 and 16/2020 to extend the reporting deadline for certain requirements under the Renewable Fuels Standard Regulation (RFSR) and the Technology Innovation and Emissions Reduction Regulation (TIERR).
Pursuant to Ministerial Order 15/2020, the deadline to submit compliance reports and emissions reduction plan reports for 2019, as required by the TIERR, is extended from March 31, 2020, to June 30, 2020.
Similarly, Ministerial Order 16/2020 extends the deadline for fuel suppliers, approved contributors, and renewable fuel providers to submit reports for the 2019 compliance period, as required by the RFSR, is extended from March 31, 2020, to June 30, 2020.
It is important to note that these Ministerial Orders do not impact, alter or change similar reporting requirements under federal environmental legislation and regulations including, for example, reporting requirements under the Canadian Environmental Protection Act, 1999 and the federal Renewable Fuels Regulations.
Legal Scope and Timelines
The Ministerial Orders are made pursuant to the Public Health Act and the Lieutenant Governor in Council's Order in Council 080/2020 made on March 17, 2020, declaring a state of public health emergency in Alberta due to COVID-19. Further to this declaration, section 52.1(3) of the Public Health Act authorizes the Minister of Health or the Minister responsible for an enactment to suspend or modify the application or operation of all or part of an enactment, if the Minister is satisfied that the application or operation of all or part of the enactment is not in the public interest.
The preambles to the Ministerial Orders provide Minister Nixon's reasons for modifying the Acts and Regulations. Ministerial Order 17/2020 relies on the hardship associated with compliance with the routine reporting requirements during this public health emergency to determine that the provisions modified by the Ministerial Orders are not in the public interest. In contrast, Ministerial Orders 15/2020 and 16/2020 recognize that certain measures taken to address the public health emergency may create challenges for some regulated facilities under the RFSR and the TIERR to submit their required reporting. All three Ministerial Orders will remain in force until the earliest of the following:
- August 14, 2020;
- 60 days after Order in Council 080/2020 (i.e., the Order in Council declaring a state of public health emergency) is terminated, if it is terminated before June 15, 2020; or
- upon termination of the Ministerial Orders by the Minister or Lieutenant Governor in Council under the Public Health Act.
While similar actions have not been taken by the Canadian Federal Government, the Environmental Protection Agency (EPA), the federal environmental regulator in the United States, has temporarily suspended routine compliance monitoring and reporting requirements. In contrast to Ministerial Order 17/2020, the broader relaxation provided by the EPA allows for enforcement discretion by the regulator in penalizing non-compliance where it is not reasonably practicable due to COVID-19. However, the EPA may require that a company provide documentation identifying how COVID-19 caused the non-compliance and the efforts taken by the company in response. As mentioned above, Ministerial Order 17/2020 does not provide relief from reporting a non-compliance, but only from the requirement to report routine information collected under an Authorization.
Compliance with both public health and environmental regulatory requirements remains a complex balancing act in the current circumstances. We will continue to monitor ongoing developments as governments, regulators, and industry explore out practical ways to achieve regulatory compliance in this public health emergency.
Should have you have questions as to how these changes affect your operations and business, please contact the Bennett Jones Environmental group. In addition, please visit our COVID-19 Resource Centre for other COVID-19-related materials.
Please note that this publication presents an overview of notable legal trends and related updates. It is intended for informational purposes and not as a replacement for detailed legal advice. If you need guidance tailored to your specific circumstances, please contact one of the authors to explore how we can help you navigate your legal needs.
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