Authors: Billie Fortier, Leigh Peters
The Lieutenant Governor in Council has declared a state of public health emergency in Alberta due to COVID-19. As a result, a minister may make an order without consultation to suspend or modify the application of legislation for which they are responsible, in accordance with section 52.1 of the Public Health Act, RSA 2000, c P-37.
Jason Nixon, Minister of Environment and Parks, and Sonya Savage, Minister of Energy, have respectively issued the following ministerial orders suspending certain reporting requirements under the listed enactments:
Update: Ministerial Order # 15/2020 and 16/2020 have expired as of June 30, 2020. Ministerial Order # 17/2020 has been repealed and replaced by Ministerial Order # 32/2020. Reporting requirements resumed on July 15, 2020.
Technology Innovation and Emissions Reduction Regulation
The deadlines to submit compliance reports and emission reduction reports are extended from March 31, 2020 to June 30, 2020.
Renewable Fuels Standard Regulation
The deadlines to submit fuel supplier compliance reports, approved contributor compliance reports, and renewable fuel provider compliance are extended from March 31, 2020 to June 30, 2020.
Environmental Protection and Enhancement Act
Except in the case of drinking water facilities, all requirements to report information pursuant to registrations or approvals are suspended.
Except in the case of drinking water facilities, all requirements to report information pursuant to licences or approvals are suspended.
Public Lands Act
All disposition requirements to submit returns or reports are suspended.
Ministerial Order 219/2020 (Energy)
Update: Ministerial Order 219/2020 has been repealed and replaced by Ministerial Order # 328/2020. Reporting requirements resumed on July 15, 2020.
Coal Conservation Act and Coal Conservation Rules
Certain requirements for progress reporting, reports on the exploration activities, and all reporting requirements on plans specified within approval conditions, except geotechnical reporting, are currently suspended.
Oil and Gas Conservation Act and Oil and Gas Conservation Rules
Certain requirements to report on annual and initial reservoir pressure surveys, progress reports and performance reports, and submission of well log are currently suspended. Certain suspension requirements including initial suspension, on-going inspection, and compliance deadlines for certain types of inactive wells are suspended.
Oil Sands Conservation Act and Oil Sands Conservation Rules
Certain requirements to annually provide mine plans for the following year, reports on the previous year’s operations, and geotechnical reports are suspended.
The ministerial orders are in force until at least August 14, 2020, unless they are terminated earlier by the respective minister or the Lieutenant Governor in Council. The orders will likely last longer if the state of emergency is extended.
The regulatory compliance regime in Alberta largely functions on self-reporting. The public policy reason behind the issuance of these orders is the acknowledgment by the Alberta government that there is a hardship in having to comply with routine reporting requirements during the COVID-19 pandemic, particularly if energy companies are operating with reduced workforces.
It is imperative to note that the above orders do not suspend all reporting requirements that apply to companies operating in Alberta. For example, approval holders must still comply with reporting requirements with respect to the release of harmful substances and reporting and record requirements applicable to drinking water treatment facilities.
Further, while certain reporting requirements are suspended under the orders, it is not clear whether the records subject to the orders may be requested by the regulators during or after the suspension period. Ministerial Order 17/2020, for example, requires approval, registration, license and disposition holders to continue to record and retain complete information relating to any reporting or return requirements under the Public Lands Act and such records shall be made available to the Ministry of Environment and Parks or the Alberta Energy Regulator upon request. Therefore, we recommend that approval holders continue to maintain complete records and monitor regulatory compliance in accordance with the ordinary course of business should they be required to produce said records to the applicable regulator during or after the suspension period.