Appeal No. 96-080


Date of Hearing - June 9, 1997
Date of Report and Recommendations - June 27, 1997

 

IN THE MATTER OF Sections 84, 85, 86, 87, 91, 92 and 93 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF an appeal filed by Mr. Paul Emile and Ms. Yvonne Gamache, with respect to Reclamation Certificate No. 28441 issued to Mobil Oil Canada, Ltd., by Mr. Terry Leskiw, Inspector of Land Reclamation Division, Alberta Environmental Protection.

Cite as: Gamache v. Inspector of Land Reclamation Division, Alberta Environmental Protection

HEARING BEFORE

Dr. M. Anne Naeth, Panel Chair
Dr. Ted W. Best
Mr. Ron V. Peiluck

APPEARANCES

Appellants: Mr. Paul Emile and Ms. Yvonne Gamache

Other Parties: Mr. Gilbert Van Nes, Environmental Law Section, Alberta Justice, representing the Inspector of Land Reclamation Division, and Mr. Terry Leskiw, Inspector, Alberta Environmental Protection

Mr. Tim Irwin, Mobil Oil Canada, Ltd.

BACKGROUND

On November 6, 1996, the Environmental Appeal Board (the Board) received a Notice of Appeal dated October 29, 1996, filed by Mr. Paul Emile and Ms. Yvonne Gamache (the Appellants). The appeal challenges Reclamation Certificate No. 28441 issued to Mobil Oil Canada, Ltd. (Mobil Oil), certifying that the surface of the land held by Mobil Oil, within SE Sec 4 Tp. 64 Rge. 6 W4M, in connection with or incidental to Mobil Garth 7-4-64-6 well, complied with the conservation and reclamation requirements of Part 5 of the Act. The Reclamation Certificate was issued on September 11, 1996 by the Inspector of Land Reclamation Division.

The Board wrote to the Department of Environmental Protection (the Department) on November 6, 1996, to request copies of all related correspondence, documents and materials. On that same date the Board wrote to Mobil Oil informing them that an appeal had been filed and providing them with a copy of the appeal.

On November 21, 1997, the Board wrote to the Natural Resources Conservation Board (NRCB) and the Alberta Energy and Utilities Board (AEUB) asking whether this matter had been the subject of a hearing or review under their Boards' legislation.

On November 22, 1996, Ronald S. Girvitz, Counsel for the AEUB, advised the Board that the Notice of Objection, being the terms of the reclamation certificate, were not within the jurisdiction of the AEUB.

On November 26, 1996, William Kennedy, Solicitor for the NRCB, advised the Board that the appeal did not deal with a matter that had been the subject of a review under the provisions of the NRCB Act.

All requested correspondence was received from the Department and a copy was sent to the Appellants on November 22, 1996. Along with the information sent, the Board requested comments to the following procedural issues from the Appellants and the Department:

  1. In the event that the Board decides to proceed with this appeal, do you wish to have a pre-hearing meeting under section 11 of the Environmental Appeal Board Regulation? If so, what would you contemplate to be the agenda for that meeting?
  2. In your opinion, are there any other persons who have an interest in this matter?

Additional comments were requested of the Appellants as follows:

  1. Please describe the type of growth that occurred on the land in question prior to current developments.
  2. To your knowledge, were you advised of any testing in relation to the issue of contamination, ie. soil sample analysis, etc., and the results of such testing?

Following receipt of written representations by the parties, on December 6, 1996, the Board wrote to all parties advising that it would be conducting a mediation meeting on February 4, 1997, in Fort Kent. The Board also advised that if the meeting did not result in a resolution of the issues in the appeal of the Gamaches, the facilitator would determine all of those matters set out in s. 13 of the Environmental Appeal Board Regulation with respect to the (forthcoming) oral hearing.

THE MEDIATION MEETING

The mediation meeting was held on February 4, 1997, in Fort Kent. According to the Board's standard practice, the Board called the mediation meeting in an attempt to mediate or to facilitate a resolution of this appeal, or failing that, to make arrangements for the oral hearing by determining all matters set out in section 13 of the Environmental Appeal Board Regulation.(1) The Board invited two representatives from each party to participate and the attendance at this meeting included parties identified on page 2.

In conducting the mediation, Dr. Ogilvie (mediator) explained the purpose of the mediation meeting. He then circulated copies of the "Participants' Agreement to Mediate". It was agreed by all parties that the Board would hold its file in abeyance until May 15, 1997.

On May 13, 1997, the Board received a letter from the Gamaches stating:

"We have thought it over and we would like to proceed to a hearing, we are not satisfied at all.

They have not contacted us since our meeting at the house on Feb 4/97."

Through consultation with the parties, the Board set a hearing date for June 9, 1997, in Edmonton.

THE HEARING

On May 20, 1997, the Board wrote to all parties advising that the hearing date had been set and included a Notice of Hearing. Written submissions were requested from all parties and received from Mobil Oil and the Department. On June 9, 1997, the hearing took place in Edmonton.

THE ISSUES

The issue to be considered is whether the Land Reclamation Division Inspector erred in issuing reclamation certificate No. 28441 following the inquiry on September 11, 1996.

Although the Notice of Appeal filed by the Gamaches appeals the decision of Mobil Oil to terminate the surface lease for Lease SE 4-4-64-6-W4M, surface rights is not within the jurisdiction of the Board and was not a subject of the hearing. This issue was discussed with the parties prior to the opening of the hearing.

SUMMARY OF THE EVIDENCE

The Appellants

The Gamaches said they wanted their land back to what it was before being leased. Prior to the well site development and reclamation they had good agricultural land on the lease site. They were not satisfied with the reclamation, and questioned why a reclamation certificate was issued when no work had been done on the site since the last reclamation certificate application and subsequent failure. The Gamaches were concerned that contamination had been found on the site in an earlier inspection but this contamination had never been dealt with. They were concerned with the lack of communication from Mobil Oil, stating that they had not received information prior to the hearing, no one ever explained the lab soil results to them and Mobil Oil said they would keep in touch but never did.

The Gamaches had several specific concerns with the reclamation of the site. They said nothing grows since the work had been done on the lease site. They were also concerned that the site was much lower than it had previously been and drainage was impeded. They suggested the well site had not been filled properly, hence the lower elevation.

In cross examination, the Gamaches indicated that the crops were shorter, often up to a foot, and the heads did not develop as well as in the crops off site. The crop was at the same stage of development and the same colour as off site. They said that even weeds do not grow on the site now. They said that wheat had been seeded last year but did not germinate on the site even though it was a fairly good crop off site. The site had been seeded to barley a couple of weeks later. They testified that the soil on site was much higher in clay than it was prior to the development and that this clay tended to form large clumps. Soil colour was not different on site and off. At this time they also indicated that fill material had been taken from off site without their permission. They said they did not initiate discussion with Mobil Oil people but only talked to them when they came to the site and often over a year would go by before they talked to anyone. They did not ask for compensation for the failed crops because they thought it was part of the original agreement.

The Department

Mr. Leskiw went through the history of the site: in 1987 it failed to get a reclamation certificate due to amendments required; in 1988 there was a subsidence problem; in 1989 there was topsoil and vegetation variability from off site; in 1990 there was decreased vegetation production on site; the 1994 application was cancelled due to implementation of the new Act; in 1996 the land was certified as reclaimed. He discussed the criteria for certification and the focus on equivalent capability, soil, vegetation and contour of the land. Since the well site was constructed in 1983-1984, only 70% of the off site control was required in the vegetation for a reclamation certificate, relative to the 80% required by the current criteria. He discussed the details of the site inspection that led to the reclamation certificate being issued and how the site met all of the criteria for certification. He said that he had visited the site a few days prior to the hearing and taken photographs of the current state.

Under cross examination Mr. Leskiw indicated there had been no tests for contamination as there was no indication contamination was present. He discussed the comparison of the on and off site crop in detail. He indicated the fact that it was wheat off site and barley on site was not a problem since the criteria focuses on vegetation cover. He also indicated that when he went to the site he planned to do a more thorough inspection than normal because of the long history of rejected reclamation certificate applications.

Mobil Oil

Mr. Irwin went through the details of the file on the site as per his May 27, 1997 letter to the Board (providing similar information to that outlined by Mr. Leskiw above). He said the site had been reclaimed by cleaning up the debris, recontouring, adding manure and picking rocks.

He said the site met the reclamation criteria. He indicated that the difference in crops on and off site was not a problem since the area seeded to barley was larger than the site itself and the barley on and off site was comparable.

Under cross examination Mr. Irwin indicated that contaminants were not an issue. They had been flagged as a possibility in an early site inspection, but nothing was ever found in subsequent site visits. He said that even normal cement debris might be called a contaminant and flagged for later assessment. He focussed on an assessment done by an independent consulting company, TRS Abandonrite Inc., the year prior to the reclamation certificate application when canola was planted both on and off site. The crops were compara other problems were found with the site. He also said a second independent assessment had been performed in 1993 by Alpine Environmental who also found the site met reclamation criteria guidelines. He said he thought the wheat may not have grown on the site because it is naturally lower and water was ponded, thus the wheat may not have germinated.

SUMMARY OF THE FINAL ARGUMENTS

The Appellants

The Gamaches said they are not satisfied with the reclamation of the site. They have been fighting this company for 9 or 10 years. The kernels in the grain are just not there. They want their land back the way it was prior to development and reclamation of the site.

The Department

Mr. Van Nes indicated there was no proof that the Inspector was patently unreasonable. Whether or not this is the standard of review, the burden of proof was on the Appellants, and, Mr. Van Nes argues, on the balance of probabilities, they did not discharge that burden. The test that has to be met to get a reclamation certificate is to prove equivalent land capability not to determine if the landowners are satisfied. All evidence indicates that the criteria were met, including an independent consultant site assessment and the site assessment by the Department. He said that the Inspector even took a longer than normal time (2 hours versus 45 minutes) for the inspection and found nothing wrong. He said the borrowed soil from off site was not an issue since the hearing is to deal with the issuing of the reclamation certificate which had nothing to do with off site soil procurement. Contamination was not an issue since it was checked and nothing was found. Even if contamination was an issue a reclamation certificate does not protect against that and Mobil Oil would still be responsible. Communication was an issue. Unfortunately communication was poor between the Appellants, Mobil Oil and the Department. However, this is irrelevant to the issuing of the reclamation certificate which is the subject of this hearing. Thus the inspector did not err in issuing the reclamation certificate and the appeal should be dismissed.

Mobil Oil

Mr. Irwin said that based on the current reclamation criteria, the site was certified. He said if there had been any contamination problem they would not have applied for the reclamation certificate.

CONSIDERATION OF THE EVIDENCE BY THE BOARD

The lack of specific information in some areas was a concern for the Board. The Appellants did not provide adequate information and photos to show the specific concerns that they had with the site. It was only under intensive cross-examination that detailed information was forthcoming. The report of the Inspector was also sparse and did not give detailed information of the site inspection. This detail, however, did come out in the presentation of evidence at the hearing. The Board also felt that good independent site inspection data were provided in the written submissions from Alpine Environmental and TRS Abandonrite Inc.

The difference in crop on and off site was a concern. However since the criteria focus on vegetation cover, it could be assessed with the two types of cereal crops used. The independent assessment done by TRS Abandonrite Inc. evaluated the same crop (canola) on and off site and found no differences. Mr. Gamache originally said that only the site itself was seeded to barley, then later said it was an area larger than the site. Even if this is true the Board does not believe that the small amount of crop off site was sufficient to compare on and off site for the same crop. The Board is satisfied that according to the criteria, the cover could be assessed between wheat and barley. The independent assessment in the previous year also provided information that the criteria had been met when the same crop was on and off site.

The lack of communication among the Appellants, the Department and Mobil Oil is of concern to the Board. The Board believes that many issues raised at the hearing could have addressed through better communications among the parties.

Thus on the balance of evidence the Board must conclude that the Appellants did not discharge the burden of proof that they were required under the Act to discharge. Hence, the reclamation certificate that was issued prevails and the appeal should be dismissed.

RECOMMENDATIONS

The Board recommends that the Minister of Environmental Protection uphold the decision of the Inspector of Land Reclamation Division in Reclamation Certificate No. 28441.

Further, with respect to section 92(2) and 93 of the Environmental Protection and Enhancement Act, the Board recommends that copies of this Report and Recommendations and of any decision by the Minister be sent to the following parties:

Dated June 27, 1997, at Edmonton, Alberta.

"Original signed by"

Dr. M. Anne Naeth

"Original signed by"

Dr. Ted W. Best

"Original signed by"

Mr. Ron V. Peiluck

ORDER

I, Ty Lund, Minister of Environmental Protection:

Agree with the Recommendations of the Environmental Appeal Board and order that they be implemented.

Dated at Edmonton this 11 day of July 1997.

Honourable Ty Lund

Minister of Environmental Protection


Footnotes

(1) Alberta Regulation 114/93.

 

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