Appeal No. 98-004

 

Date of Hearing - August 25, 1998
Date of Report and Recommendations - September 25, 1998

 

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 Ms. Joan Fossen, Secretary, G & J Fossen Ranch Ltd., with respect to Reclamation Certificate 36043 issued to Discovery West Corporation (Magin Energy Inc.) on June 5, 1997, by Doug Beddome, Inspector of Land Reclamation, Alberta Environmental Protection.

Cite as: Fossen and G & J Fossen Ranch Ltd. v. Inspector of Land Reclamation, Alberta Environmental Protection re: Discovery West Corporation

TABLE OF CONTENTS

BACKGROUND 1
THE ISSUES TO BE DECIDED 3
SUMMARY OF THE EVIDENCE 4
The Appellants 4
The Department  6
The Approval Holder 7
The Site Visit 8
SUMMARY OF FINAL ARGUMENTS 9
The Appellants 9
The Department  10
The Approval Holder 11
CONSIDERATIONS OF THE BOARD  12
RECOMMENDATIONS  14
ORDER  15


HEARING BEFORE

Dr. M. Anne Naeth, Panel Chair
Dr. John P. Ogilvie
Mr. Ron V. Peiluck

APPEARANCES

Appellants: Ms. Joan Fossen, Secretary, G & J Fossen Ranch Ltd. and Mr. Gerald Fossen, President, G & J Fossen Ranch Ltd.

Other Parties: Ms. Joanne Esbaugh, counsel, Alberta Justice representing Mr. Doug Beddome, Inspector of Land Reclamation, Alberta Environmental Protection

Mr. Bradley Gilmour, counsel, Bennett Jones Verchere, representing Mr. John Boone, Discovery West Corporation (Magin Energy Inc.) and Mr. Alan Scheibner, Western Oilfield Environmental Services Ltd.

BACKGROUND

[1] On February 12, 1998, the Environmental Appeal Board (the Board) received a Notice of Appeal from Ms. Joan Fossen, Secretary of G & J Fossen Ranch Ltd. (the Appellant) dated February 10, 1998 with respect to Reclamation Certificate No. 36043 issued to Discovery West Corporation on June 5, 1997. Discovery West Corporation amalgamated with Magin Energy Inc. on June 1, 1998 and operates under the name of Magin Energy Inc. (Magin). Reclamation Certificate No. 36043 certified that the surface of the land held by Discovery West Corporation, within SW Sec. 29 Tp. 37 Rge 4 W4M, in connection with or incidental to Discovery 6B1 Provost 6-29-37-4 well, complies with the conservation and reclamation requirements of Part 5 of the Environmental Protection and Enhancement Act(1) (the Act).

[2] The Board wrote to the Appellant on February 12, 1998, acknowledging receipt of the appeal and by copy of that letter requested that the Department of Environmental Protection (the Department) provide all related correspondence, documents and materials. On that same date the Board wrote to Mr. John Boone of Magin (the Approval Holder) advising him that an appeal had been filed by Ms. Joan Fossen and providing him with a copy of the appeal.

[3] According to standard practice, on February 29, 1998, 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 respective Boards' legislation. Replies were received from both the NRCB and the AEUB stating they did not hold any hearing or review under either of their Boards' legislation.

[4] All requested correspondence was received from the Department on March 10, 1998, and a copy was forwarded to the Appellant and the Approval Holder. In the Board's letter of March 12, 1998, addressed to Ms. Joan Fossen and copied to the parties, the Board requested that parties advise whether they wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation(2), if they wished to have a preliminary meeting under section 11(b) of the regulations, and if there were any other persons who may have an interest in the appeal. Further, the Board also asked Ms. Fossen:

"As relevant here, section 84(1) of the Act provides that a notice of objection of a Director's decision, like Reclamation Certificate No. 36043, may be submitted by a person who is "directly affected". Section 87(5)(a)(i.1) authorizes the Board to dismiss an appeal if the person who submits the notice fails to meet this "directly affected" test.

Thank you for providing a copy of the well site location along with a map indicating where the lease and access road are. Can you also confirm whether you are the owner of the lands involved. If there is anything further you wish to add at this time with regards to the directly affected issue, or any further comments please do so at this time. The Board also requests comments from the other parties involved at this time, namely the Department of Environmental Protection and Magin Energy."

[5] The Board received responses to their March 12, 1998 letter from the Department and the Appellant. The Department and the Appellant stated that they would be willing to have a mediation meeting or a preliminary meeting but upon further consultation with all the parties it was determined to best proceed to public hearing.

[6] On March 27, 1998, the Board forwarded copies of the appeal file to the Special Areas Board at the Department of Municipal Affairs, Mr. Gerald Fossen, President of G & J Fossen Ranch Ltd. and Mr. James Fossen, as the Department and Ms. Fossen identified these persons as possible interested parties.

[7] On March 30, 1998, the Board received from Ms. Fossen a copy of "Schedule A Being Part of a Consent of Occupant" dated April 30, 1993 between Mr. James S. Fossen and Mr. Gerald R. Fossen, as Lessor, and Discovery West Corp., as Lessee.

[8] The Board was advised on April 1, 1998 by the Special Areas Board that they would not be participating in a hearing as they had no further information to contribute. On April 9, 1998 the Board wrote to the parties and advised that a hearing would take place on July 8, 1998 and requested written submissions from the parties. In the Board's notice of public hearing placed in the Edmonton Journal on April 15, 1998, it was noted that if any person, other than the parties wished to make representations before the Board, to advise the Board office by April 30, 1998. No intervenor requests were received.

[9] The Board received written submissions from the Department and the Approval Holder. On June 22, 1998 Magin advised that they would not be providing a written submission. By letter of July 9, 1998 Mr. Bradley Gilmour stated that he would be representing Magin and would be providing written submissions. The written submissions were received on August 14, 1998.

[10] The hearing scheduled for July 8, 1998 was subsequently rescheduled to August 25, 1998 and a notice of rescheduling of public hearing was placed in the Edmonton Journal on July 22, 1998. On August 25, 1998, the hearing took place at the Provincial Building in Provost, Alberta.

THE ISSUES TO BE DECIDED

[11] The primary issue before the Board is whether the Land Reclamation Inspector erred in issuing Reclamation Certificate No. 36043 following the inquiry on June 5, 1997.

[12] The secondary issue the Board must consider is whether the road used as access to the 6B1 and other wellsites should have been reclaimed with the lease prior to the issuance of the reclamation certificate.

 

SUMMARY OF THE EVIDENCE

The Appellants

[13] Ms. Joan Fossen with Mr. Gerald Fossen stated several issues of concern regarding the reclamation on Discovery 6B-299-37-4 Provost. They told the Board that neither had any formal education related to the subject matter. However they believed this was more than compensated for by their long historical association with the land and region, and their local knowledge and experience with the land.

[14] Ms. Fossen indicated the reclamation certificate should never have been applied for since the Magin 6B wellsite was still being used to access the Magin 12C wellsite. She said this was brought to the attention of Mr. Beddome prior to the inquiry, but it was not dealt with by him. The Fossens also told the Board they did not believe a reclamation certificate should be issued that did not include the access road.

[15] The Appellants told the Board that even if only the lease was considered, they were not satisfied with the reclamation on it. They indicated that the lease still had contamination problems. They believed the vegetation was different than off lease, having more bare ground, vegetation lines, and "sage grass" (the Board noted they were referring to the forb pasture sage) dominance. They thought there were invasions of other weeds (non-native species) on the lease. They said the areas between the seeded vegetation rows were eroding and there was evidence of soil compaction, soil admixing, uneven soil distribution and abnormal soil profiles. They thought this erosion could have been prevented by cross-seeding. They said the soil compaction was a particular problem where the access road entered the lease. They also said there was more gravel on lease than off lease. They said the pasture was not sustainable and was showing more grazing stress than the surrounding area; they also indicated there were yellow spots of vegetation on the lease that were likely due to contamination.

[16] Ms. Fossen said she had contacted several individuals to conduct an assessment of the site but was not able to hire any. She said government agencies did not offer any assistance in conducting an independent study and private sector consultants contacted were not interested. Upon cross examination by the Board she said she contacted a "couple of individual companies" and Alberta Agriculture. She said no one wanted to get involved because a reclamation certificate had already been issued. Upon further cross examination by the Board, Ms. Fossen said she did not actually offer the assessment job to anyone since she did not think they were really interested.

[17] The Appellants told the Board they were not satisfied with the inquiry that had been held on site. They did not see any off site samples taken at the inquiry. They also said they thought the company was simply not communicating with them. This was exemplified, they believed, by Magin continuing to use the lease as an access area to the adjacent wellsite as well as traveling off lease to that wellsite and by Magin refusing to go to mediation.

[18] Ms. Fossen said they were also representing Special Areas. Upon cross examination from the Board she said this was unofficial in that they did not have a written request from Special Areas to represent them. She also indicated a representative of Special Areas visited the site but would not comment nor would they agree to appear before the hearing.

[19] Ms. Fossen concluded by saying they simply did not think the reclamation was up to their standards and provided photographs(3) to prove that point. She said they did not over graze the land and they were conscientious managers. They also have a greater perceived responsibility because the land is controlled by Special Areas.

The Department

[20] Ms. Esbaugh called Mr. Beddome who went through his formal education and long history of experience in matters related to the issuance of reclamation certificates. He stated that the primary objective of the petroleum lease holder and the legislation is to achieve comparable land capability with not necessarily the same characteristics as adjacent lands. He indicated the role of the inspector is not to conduct detailed studies but to conduct those investigations necessary to either confirm or reject the work conducted by or for the applicant.

[21] Mr. Beddome indicated that he considered the application complete. He said it was important to note that there was a short period of time between drilling and abandonment. Site work before and after drilling prescribed by Special Areas and the use of an environmentally friendly drilling mud (Gel Chem) reduced the possibility of potential impacts. He said the site was also subject to three undisturbed growing seasons protected by a fence.

[22] Mr. Beddome told the Board that his investigation included digging test pits in two control locations and visual observations of the surrounding area; he considered all the prescribed criteria including admixing and related rooting depth, landscape contours, vegetation voids, erosion, surface rock content, top soil depth, compaction and litter coverage were within allowable limits. He said he observed no contamination and no uncommon weed infestations. He said the current presence of sage and gumweed were not a concern at the time of the inquiry since disturbed sites are initially more susceptible to weed infestation until native species become more established. He also indicated that no issues of substance were raised at the inquiry. He concluded the site met the criteria and a decision was made to issue the reclamation certificate.

[23] Upon cross examination from the Board Mr. Beddome indicated that his role is to review the site and surrounding conditions with reference to the application. Other issues such as access or communication between the related parties are not part of an inspector's mandate. He said he knew the Appellants were concerned with Magin using the lease and/or the area adjacent to the lease for access to a nearby wellsite but did not feel it was necessary to deal with it. He believed this should be worked out with Magin and the Fossens. He also indicated it was acceptable for only the lease and not the access road to be reclaimed and certified.

[24] Upon cross examination by the Board, Mr. Beddome responded to concerns of the Appellants. He said assessing vegetation cover off and on site is difficult. While there are no written rules, the standard approach is to measure the success of the vegetation growth "in the seeded rows". Although not perfect, he stated it is only one of many criteria and observations used to make a decision. He said the yellow spots on the site were likely cow urination areas. He said there appeared to be a lack of knowledge on the interrelationship with native species and their potential success of encroachment and dominance. He stated that the bare areas in the center of the site were less than 50% of a standard 30 x 30 meter grid, and therefore were within the required criteria.

[25] Mr. Beddome indicated that the yellow patches and the large amount of sage were not present on the site at the time of the inquiry. He also indicated that if he had seen it at the inquiry he would have asked the company to assess it. When questioned by the Board about the invasibility of the grasses seeded on the site, he said they were not invasive. When asked whether he would make the same decision again having seen the site on the site visit, he replied probably without the benefit of a totally detailed review.

The Approval Holder

[26] Mr. Gilmour called Mr. Boone and Mr. Scheibner as a panel and reviewed their qualifications and experience. They indicated the site was reclaimed and fenced in accordance with standard practice shortly after well abandonment. It was emphasized that the company's approach to land use was under the direct guidance of Special Areas. Special Areas emphasized using practices which minimize disturbance such as avoiding the construction of roads and site trips. They also dictate the seed mix to be used.

[27] They testified that after three years a consultant specializing in well site reclamation was retained to investigate the reclamation success. After conducting the necessary field studies and record review Magin concluded that the site met the criteria and their consultant on behalf of Magin prepared the application for certification. It was further stated that both the study prior to the application and the one conducted as recently as August 22, 1998, indicated that the site met the criteria. There were no reports of contamination or problems with the soil and vegetation.

[28] Mr. Scheibner indicated that assessment of vegetation was the focus of the inquiry because the site had three years of undisturbed growth. Test pit information on and off site indicated that the vegetation growth was sustainable with grazing. He was not certain about the criteria for assessment but made it clear that he did not do the work himself, rather it was conducted by personnel in his company.

[29] Mr. Scheibner when asked whether he would make the same decision today, he replied yes. He did admit there were numerous errors in the application but none of these were applicable to the reclaimed state of the lease.

The Site Visit

[30] The Board participated in a visit to the site so the Appellants could point out the problems on the lease. Prior to the site visit the Board instructed the parties that they wanted to see the lease and access road boundaries, the problems with the site reclamation and the area allegedly being driven on by Magin. The Board instructed the parties there would be no discussion on the site but what was observed could be discussed once the Board and parties returned from the site.

[31] The Board noted that if the visual impact of seeded rows was eliminated it was difficult to find anything (soils, vegetation, topography) out of the ordinary on the lease and access. It was very difficult to identify the access road and the area presumably being currently driven on. There was definite encroachment of native species between the seeded rows on the lease, however the seeded rows were still visible. Grazing impact on and off lease was similar. Although there were large patches of pasture sage on lease, they also occurred in patches off lease. The yellow weeds the Appellants were concerned about were native gumweed, a common plant for the area. Very minor soil erosion was noted but not to any degree greater than off site.

 

SUMMARY OF FINAL ARGUMENTS

[32] The Board requested written final arguments which were received from all parties by the specified date.

The Appellants

[33] The Appellants argue that the site is not reclaimed because it is "still very evident". They argue that the "sage grass" that has encroached makes the boundaries of the site very obvious, that little or no in-fill of plants has occurred between the seeded rows and the grass will eventually be choked out by sage and gumweed. They argue that no species assessment was done on the site and therefore it is not known what the current species composition is. They argue that according to their calculations using Mr. Beddome's data, the 80% cover has not been met. They indicated again that there were errors on the application form specifically about tank removal and disposal of materials on site. The Appellants argue that a spot of clay still exists on the site as do yellow spots of vegetation and areas of compaction. The Appellants further argue that the land is not of equivalent capability to what was there prior to disturbance because the presence of weeds means the cattle will not graze the lease the same as off lease. The Appellants believe a reclamation certificate should not have been issued until the site was shown to sustain grazing after the fence had been removed. The Appellants are also concerned that the erosion issue on the south east corner has not been addressed. They also believe the larger amounts of topsoil on lease are indicative of admixing.

[34] Finally the Appellants argue that Magin has no legal right to be on the lease to access the adjacent lease. Thus the inspector should not have certified the site knowing that the lease would still be driven on.

The Department

[35] Ms. Esbaugh argues that the 6B1 site was adequately reclaimed pursuant to the applicable reclamation standards and that there was no requirement for Magin to reclaim the access road prior to the issuance of the reclamation certificate. She argues that the Appellants have failed to provide evidence to prove the inspector issued the reclamation certificate in error.

[36] Ms. Esbaugh goes on to argue that reclaiming to equivalent capability does not mean the land must be returned to its exact state prior to disturbance but only that it must be reclaimed to a similar state capable of supporting similar uses. She indicates that Mr. Beddome followed standard methods at the inquiry and reminds the Board that the inspector is not required to take the specified number of controls and samples as outlined in the criteria. Rather these criteria are for the operator to follow. She further argues that for well vegetated sites at least three years old, portions of landscape and soils criteria may be waived. In this case soil assessment was not required.

[37] Ms. Esbaugh argues that contamination is not an issue since it was a drilled and abandoned well and the use of Gel Chem drilling mud indicated no adverse chemicals. She further argues that all aspects of the site at the time of the inquiry (soils, vegetation and landscape) met the criteria and therefore the inspector was correct in issuing the reclamation certificate. Finally Ms. Esbaugh states that the Appellants failed to provide sufficient, or any evidence that the inspector erred in his decision.

[38] Ms. Esbaugh argues that the access road did not need to be included in the application for certification since an operator is not required to reclaim all specified land at once. Although a corner portion of the lease is still admittedly being driven on by Magin, at the time of the inquiry the inspector was satisfied that the area applied for (the whole lease) had been reclaimed. She argues that issues regarding the continued access to and use of the site and continuation of the lease agreement are most appropriately left to the operator and owner/occupant of the site. She also notes that if the portion of the land still being used by Magin is damaged and requires further reclamation, the operator would be responsible for it. She finalizes the argument by saying that the simple fact that the access road continues to be used is not determinative in deciding whether to issue a reclamation certificate.

The Approval Holder

[39] Mr. Gilmour argues that the evidence of the inspector and Magin, which was based on the application of objective and standardized methods of assessment set out in the Reclamation Criteria, confirms that the wellsite has been reclaimed. Mr. Gilmour argues that the reclamation of the wellsite was assessed three times by an independent company who used the current criteria and determined that the site reclamation met the criteria. He further submits that the Appellants did not provide any objective, scientific or verifiable evidence to support their concerns or that refuted in any material way the evidence of the assessments. The evidence submitted by the Appellants was only their opinions and neither is an expert in the field of reclamation.

[40] Mr. Gilmour argues that there is no requirement under the Act that requires an access road which did not form part of the reclamation application to be reclaimed prior to the issuance of a reclamation certificate. He also submits that the issuance of a reclamation certificate does not restrict the use of the land subject to that reclamation certificate, or any portion thereof, from any future use. Reuse of the portion of the lease traveled upon is not prohibited by the Act but it does create a future obligation on behalf of Magin to reclaim that specified land if needed.

CONSIDERATIONS OF THE BOARD

[41] The Board believes the Act is clear in stating in Section 123(3) that an inspector may issue a reclamation certificate for all or only a part of the specified land.(4) The Board notes that Magin clearly applied for a reclamation certificate for the lease and not the access road. The lease clearly includes a very small portion of the access road. Thus it is clear to the Board that the entire lease, including the small corner portion of the access road, constituted the specified land for which the reclamation certificate was sought. It is also clear to the Board that the operator has the right to apply for a reclamation certificate for a portion of the specified land. Thus the Board believes the inspector acted appropriately in assessing the portion of the specified land that did not include the majority of the access road for the purposes of issuing a reclamation certificate. He acted within his jurisdiction to only certify what was on the application.

[42] Magin, the Department and the Appellants all admitted that they knew the small portion of the access road on the lease was going to continue to be intermittently used by Magin to access a nearby wellsite. The inspector testified that he believed the use of that portion of the lease for future access was a matter to be discussed with the Appellants and Magin. The application for reclamation certification clearly indicated that the area applied for was the lease and the small portion of the roadway. The inspector assessed the whole lease, with the knowledge that it was used for access, and still found that it met the reclamation certification criteria for wellsites with three or more years of growth. The Board believes the inspector acted appropriately in assessing what was on the application. It is not the responsibility of the reclamation inspector to intervene with a company and a landowner about future access to a nearby site. Thus the Board believes the inspector also acted appropriately in deciding to leave the future use of the lease for access to Magin and the Fossens. The Board also notes that the allegations of trespassing discussed at the hearing are a matter of property law that should be left to the parties and are not part of the Board's jurisdiction.

[43] The Board has carefully assessed the evidence provided in the hearing and the weight to put on each piece of evidence. The Board listened carefully to the concerns of the Appellants and it concludes that no verifiable evidence was submitted to support their concerns. The Appellants did not provide any quantitative data to support their claims of concern with the soil, the landscape or the vegetation. For example, they provided no plant density or ground cover data, nor did they provide any soil depth or compaction data. The Appellants did not provide vegetation or soil data from the yellow spots. The Appellants basically reiterated that the reclamation was not up to their standards and did not show how the site did not meet the criteria. Magin and the Department, on the other hand, provided quantitative data to show that the site met the criteria outlined for sites of that nature. The Board further notes that during the field visit, no evidence was visible to suggest the problems of the magnitude the Appellants suggested.

[44] The Board heard numerous "statements of fact" from all of the parties that clearly contained erroneous information. For example, initially the Inspector claimed that the grasses seeded were native. Later he stated they were agranomic. Upon cross examination by the Board he then stated there were native and agranomic and that they were not competitive species. He indicated that total cover did not include bare ground between the rows of a seeded site. The Appellants indicated a major concern about nonnative species that were actually native. The Approval Holder stated that they followed standards set out by the Canadian Land Reclamation Association. The Board suggests that statements of fact that are wrong, such as these, should be carefully verified prior to being presented as evidence during Board hearings. Thus the Board dismisses these statements and puts no weight on them in the recommendations forwarded to the Minister.

[45] The Board noted there often appeared to be a lack of communication among the parties. Although the Board would like to see better communication in these issues it is not within its jurisdiction to compel the parties to do so.

[46] The Board concludes that the Inspector exercised proper judgement in issuing Reclamation Certificate No. 36043 as outlined by the appropriate criteria for that type of site and that it was acceptable within the Act that Magin apply for a reclamation certification of the lease and not the access road.

RECOMMENDATIONS

[47] The Board recommends to the Minister of Environmental Protection that the appeal be dismissed.

[48] 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:

Ms. Joan Fossen, Secretary, G & J Fossen Ranch Ltd.;

Mr. Gerald Fossen, President, G & J Fossen Ranch Ltd.;

Mr. James Fossen;

Magin Energy Inc., represented by Mr. Bradley Gilmour, counsel, Bennett Jones Verchere;

Inspector, Alberta Environmental Protection, represented by Ms. Joanne Esbaugh, counsel, Alberta Justice; and

Mr. Jay Slemp, Chairman, Special Areas Board, Department of Municipal Affairs.

Dated September 25, 1998, at Edmonton, Alberta.

Dr. M. Anne Naeth

Dr. John P. Ogilvie

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 05 day of October 1998.

Honourable Ty Lund

Minister of Environmental Protection



Footnotes

1. Chap. E-13.3, as amended.

2. AR 114/93 (hereinafter "the regulations").

3. Exhibits 3a - 3q - April 1998 photographs.

4. Section 123 (3) of the Act states:

123 (3) An inspector may issue a reclamation certificate with respect to all or only a part of the specified land, and in the latter case section 122 continues to apply with respect to the remaining specified land.

 

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