Appeal No. 98-251

 

Dates of Hearing: August 18, 1999 and September 3, 1999
Date of Final Replies: September 30, 1999
Date of Report and Recommendations: October 29, 1999

 

IN THE MATTER OF Sections 84, 85, 86, 87, 88, 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 Cabre Exploration Ltd., with respect to the November 16, 1998 decision of Mr. Doug Rawluk, Conservation and Reclamation Officer, Alberta Environmental Protection, to refuse to issue a reclamation certificate to Cabre Exploration Ltd.

Cite as: Cabre Exploration Ltd. v. Conservation and Reclamation Officer, Alberta Environmental Protection.



TABLE OF CONTENTS

BACKGROUND 1
SUMMARY OF EVIDENCE 2
The Appellant 2
The Department 5
Mr. Darrel Dzurko 8
FINAL ARGUMENTS 8
The Appellant 8
The Department 9
Mr. Darrel Dzurko 10
The Appellant's Reply 10
ISSUES BEFORE THE BOARD 10
CONSIDERATIONS OF THE BOARD 11
RECOMMENDATIONS 21
COSTS 22
ORDER 23

HEARING BEFORE  

Dr. M. Anne Naeth, Chair
Dr. Ted W. Best
Dr. Curt Vos

 

APPEARANCES Appellant: Mr. Howard Ward, counsel, Burstall Ward, representing Mr. Ron Groves, Mr. Richard Kaminski, Cabre Exploration Ltd.; Mr. Michael Melnyk, Environment; and Mr. Robert Staniland, Talisman Energy Inc.

Department: Ms. Maureen Harquail, counsel, Alberta Justice representing Mr. Doug Rawluk, Mr. Arnold Janz, Mr. David Lloyd and Mr. Calvin Symington, Alberta Environmental Protection

Other Party: Mr. Darrel Dzurko

 

BACKGROUND

[1] The Environmental Appeal Board (the Board) received a Notice of Appeal dated December 16, 1998 from Mr. Ron Groves on behalf of Cabre Exploration Ltd. (the Appellant) objecting to the decision of Mr. Doug Rawluk, Conservation and Reclamation Officer, Alberta Environmental Protection, dated November 16, 1998, refusing to issue a reclamation certificate for lands located at LSD 12, Sec 6, Rge 38, TWP 3, M4. The Board wrote to the Appellant on December 17, 1998, acknowledging receipt of the appeal and by copy of the letter requested the Department of Environmental Protection (the Department) provide all related correspondence, documents and materials. The Board wrote 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 legislations. They replied it had not.

[2] On January 14, 1999, the Board received a verbal request from Mr. Darrel Dzurko, the landowner, for information on the appeal and advised him he would be provided with all documentation the Board received. All requested correspondence was received from the Department on January 20, 1999 and a copy was forwarded to the Appellant and Mr. Dzurko on January 26, 1999. On February 3, 1999 the Board received a letter from Mr. Dzurko requesting party status to the appeal and responded, granting him party status. On April 1, 1999 the Board received a letter from the Department enclosing information not previously supplied.

[3] On February 12, 1999, the Board wrote the parties requesting they advise whether they wanted a mediation meeting under section 11 of the Environmental Appeal Board Regulation(1), if so, what the agenda would consist of, and if there were any other persons who may have an interest in the appeal. Responses faxed from the Appellant and the Department on February 24, 1999 indicated they would consider a mediation. The Board advised parties that a mediation meeting would be held April 6, 1999 in Calgary with Dr. John Ogilvie as the presiding Board Member and that a Notice of Mediation and Public Hearing was placed in the Calgary Herald on March 5, 1999. The items on the agenda for the mediation meeting were to establish:

1. The predisturbance site conditions prior to construction of the wellsite,

2. The condition of the site vegetation over time since the initial reclamation,

3. If the site had been reclaimed to equivalent capability, and if not, to determine how far away from equivalent capability the site was,

4. An evaluation of each of the inquiries held and the resulting decisions,

5. If the fundamental principles of a reclamation certificate were applied,

6. Justification for the parameters being used by the Department to fail the site and cancel the application,

7. What remedial work if any the Department still required, and

8. Landowner issues and concerns.

[4] As no resolution was reached at the mediation meeting, which the landowner attended, the Board advised parties on April 19, 1999 that a hearing would take place June 21, 1999 in Calgary and requested written submissions. A Notice of Public Hearing was placed in the Calgary Herald April 23, 1999; any person other than the parties who wished to make representation, was to advise the Board by April 29, 1999. No intervenor requests were received; all parties provided written submissions. The hearing was rescheduled to August 18, 1999 and a Rescheduling of Public Hearing was placed in the Calgary Herald Thursday, July 8, 1999. The hearing took place on August 18 and September 3, 1999 at the Federal Court of Canada in Calgary. At its conclusion, the Board directed a letter to parties advising that closing arguments were due from the Appellant on September 13, 1999 and from the other parties on September 23, 1999, and final reply was due from the Appellant on September 30, 1999.

SUMMARY OF THE EVIDENCE

The Appellant

[5] The Cabre witness panel summarized the site history. Polaris began construction June 23, 1992, drilled, found the well dry and began surface abandonment July 23, 1992. Daily reclamation reports were discussed. Cabre assessed the site on June 20, 1995, deemed it reclaimed, collected field data from June 21 to 23, 1995, then submitted an application for reclamation certification to the Department on July 17, 1995. The Department held an inquiry August 22, 1995 then issued a notice for deficiencies. Cabre paratilled the lease and road June 1 and July 5, 1996, advising the Department on September 12, 1997 that the notice conditions were fulfilled.

[6] A second inquiry was held September 29, 1997 leading to another notice and application cancellation for profile restrictions, vegetation and salt contamination. In 1998, Cabre soil sampled on April 28, 1998, requested a file review by Mr. David Lloyd on April 30, 1998, and retained Environet Corporation (Environet) to perform a third party site review pn May 7, 1998. Mr. Groves talked to Mr. Onciul of the Department on May 20, 1998 and the application was reinstated May 22, 1998. On May 25, 1998 Cabre contacted Mr. Lloyd about file status and a third inquiry was held June 23, 1998; another notice was issued July 6, 1998 for profile restrictions, stressed and uneven alfalfa growth and increased visible salts in the subsoil. In preparation for a hearing before the Surface Rights Board, as initiated by Mr. Dzurko, Cabre retained Environet on July 15, 1998 for a second site investigation. Cabre requested a new inquiry from the Department August 24, 1998 and an inspection was held September 17, 1998 after Mr. Dzurko and Cabre were asked by the Department to waive their rights to attend. Mr. Dzurko appeared at the inspection and pointed out an area of alleged deficiency. Cabre wrote to Mr. Lloyd on November 6, 1998 expressing strong concern over the handling of the file.(2) The Department cancelled the application November 16, 1998.

[7] Cabre said they were seeking issuance of a Reclamation Certificate effective September 29, 1997 at which time the site met or exceeded reclamation criteria for wellsites constructed between 1983 and 1994. Cabre discussed construction procedures from airphotos(3) and site plans, showing the whole site had not been disturbed and there was no record of spills. Topsoil and subsoil were salvaged and piled separately, subsoil was covered with topsoil in the disturbed areas and normal seeding was completed.

[8] Mr. Melnyk showed airphotos(4) to indicate the area of Mr. Rawluk's concerns was the center of a naturally occurring saline discharge area that had not been disturbed by soil stripping. He showed vegetation was never even on the lease, with that on the west half historically severely affected by saline discharge. Mr. Melnyk discussed his site assessments noting Solonetzic(5)areas outside the lease where heavy clays and salts were part of the natural profile. Soil profiles in the lease center were well fractured with some residual compaction below paratill depth. He considered these slightly to moderately restrictive based on depth to residual compaction. This restriction was similar to that in adjacent off site Solonetzic soils. Thus he concluded overall restrictions were equivalent on and off site and tolerable within the criteria. Mr. Melnyk said he took EM38(6) readings on and off site and found high salinity on the NW side and very high salinity on the SW side of the control. He said holes dug with Mr. Janz in areas of high and low vegetation growth showed no soil differences; all samples exceeded minimum surface soil requirements; average control depth and variability were equivalent to average replaced depth and variability on site.

[9] Mr. Melnyk said vegetation had not been assessed appropriately at the inquiries. He said the Department's concern that vegetation was not even across the site was unrealistic; it could not be even with highly variable soil on and off site. They showed on aerial photos that vegetation growth in the saline discharge area improved compared to predisturbance conditions and the surrounding control area. Since off site vegetation was heavily grazed and on site vegetation was not grazed at all, it was an inappropriate control. He suggested Mr. Rawluk compare the relatively ungrazed area adjacent the fence with the lease but this was not done. In his assessments, all samples exceeded minimum requirements for vegetation and in most density was better on site than off. He provided evidence on paratill spacings to show differences in vegetation appearance were due to paratilling. He said Mr. Dzurko's belief that vegetation problems resulted from site activity were completely contradicted by airphoto evidence. Mr. Staniland supplemented these submissions with infra red photos he believed indicated revegetation efforts were satisfactory and there was greater homogeneity on site than off site.

[10] Cabre said the inspector erred by not establishing appropriate predisturbance site conditions from which to judge reclamation of either the soil or vegetation. They believed Mr. Rawluk failed the site vegetation due to east and west sides not being the same instead of either side not being equivalent to the control. Cabre argues the inspector erred by assuming a drilled and abandoned well was contaminated with salts when strong evidence suggested salts and Solonetzic soils occurred on the NW and SW sides of the lease prior to disturbance. The inspector further erred in not confirming information provided by Cabre, in requesting soil analyses without justification and in expanding deficiencies to areas that passed previous inquiries. Cabre said they did not agree with the line drawn down the lease as the soils on the lease were too variable to do that. They further submitted no information was presented by the Department to support their claim that the site failed to meet criteria or to contradict the actual data provided by Cabre. Cabre believed the Department erred in continuing the September 17, 1998 inspection when Mr. Dzurko appeared on site after waiving his rights to attend, presenting a potentially prejudicial situation to Cabre.

The Department

[11] The Department panel, referring to the current criteria, stated the wellsite is cultivated land and requires replaced surface soil to be 70% of the control. The inspector submitted soil quantity on and off site were different but acceptable under the criteria except for a 10 m by 15 m area (that pointed out by Mr. Dzurko at the last inspection). Surface soil quality was acceptable. The inspector found process restriction parameters for vertical root elongation including: presence of root mats and bunches, flattened and highly branched roots, horizontal roots, soil layers or abrupt texture or structure transitions, dense and massive soil structure, an early maturing crop with reduced height and density, uneven distribution of species in mixed pasture and haylands, uneven crop height and density in cropland; absence of roots within or below reconstructed profile zones, roots within soil aggregates. The inspector noted dense, massive or layered structure (compaction) as water permeability and soil aeration restriction indicators. Vegetation did not meet the criteria as evidenced from different height and plant health compared to the control. The inspector saw numerous salt flecks in the subsoil and asked for soil chemistry data to prove there was no problem. He said profile restrictions were initially a problem on the west side but had spread to the east and south sides by the second inspection.

[12] When asked what Cabre might do to alleviate his concerns, Mr. Rawluk said his job was to inspect the site, not offer comments on what should be done to meet criteria. He said although he worked on the site for several years he did not know the extent of the problem sufficiently to address what Cabre might do. He also said he did not know how far away from meeting the criteria the site was, and at this point he required no further soil chemistry data from Cabre.

[13] In cross examination, Mr. Rawluk said that although they did not discuss the site with Mr. Dzurko when he appeared at the last inspection, they did inspect the 10 m by 15 m area he had marked and included it as a problem area in their report because they noted visible salts not found on the control. He was concerned this area would not support vegetation although vegetation currently on the area did not appear problematic. He said they did not take measurements to determine if the 70% criterion was met because they did not consider it a true surface soil. He said they did not do an assessment of a similar level to that done by Cabre(7), nor did they do a step out assessment(8). He further indicated that this 10 by 15 m area with its designated problems could not alone fail the site.

[14] Mr. Janz said the control area on the SE and NE sides were non saline, non sodic and Chernozemic(9). He said everyone agreed to draw the line down the middle of the site to differentiate soils. He saw evidence of salinity and asked for chemical analyses. He saw severe profile restrictions at 14 cm. Mr. Janz said Cabre would need to show site capability equivalent to preconstruction. He said Cabre should not have drilled in a discharge area and anyone drilling on a discharge site should be prepared to never have the site certified. He could not identify where such a site might be for comparison and did not have any ideas what could be done to improve the site. He said vegetation needed to be uniform on site even if it was not uniform off site. He said he found one hole that was different than that described by Mr. Melnyk but did not believe he needed to do a step out assessment even though it was in the criteria. Mr. Janz indicated he found no roots growing below 40 to 50 cm and this was not normal for species on the site that would likely root 2 to 3 m. He said he assessed both the Chernozemic and the Solonetzic sides and found the problem in both. Mr. Janz said roots were exped(10), flattened and severely branched or highly branched. Mr. Janz said he sampled the uneven vegetation and profile restrictions were very severe right to the surface of the green plant strips.

[15] Mr. Rawluk said he was satisfied the soil chemistry had been done correctly but there was a difference in data interpretation. Mr. Janz indicated electrical conductivity and sodium adsorption ratio, both indicative of a salt problem on site, were higher on the east side of the lease than what he "would feel comfortable with" if issuing a reclamation certificate. When further questioned, Mr. Janz said he felt the sampling done by Cabre was inappropriate because the samples analyzed were not discrete.

Mr. Darrel Dzurko

[16] Mr. Dzurko strongly iterated that the site was not reclaimed to predisturbance conditions. He stated at all inquiries he was not happy with the vegetation. He said in 1991 and 1995 the Cabre site produced bale, the control produced 1.75 to 3.5 bales and neighbouring sites produced 4 to 5 bales per acre. He said Cabre contends the growing season was very dry in 1997 but his records indicate June and July 1997 had over 5.5 inches of rain, with over 3 inches in July and August 1997, above average for the past 5 years. Mr. Dzurko said he thought the site needed further tillage and ripping before adding more topsoil, subsoil and manure.

FINAL ARGUMENTS

The Appellant

[17] Cabre argues the criteria were not followed in selecting a control. The site is limited as evidenced by a CLI(11) rating of 80% 4S and 20% 6W and existence of a saline discharge area with variable Solonetzic soils. Thus Cabre argues the site has continuously been failed for characteristics reasonably expected due to CLI rating and preconstruction conditions. Cabre argues Mr. Janz is unreasonable expecting no capability change on even small portions of a site, since he sets standards impossible to achieve recognizing normal construction practices and natural soil variability. Cabre further argues since there is no criteria requirement for preconstruction soils data, the Department can not expect it. Cabre believes it unreasonable for the Department to ask for soil analyses of a comparable discharge area off lease yet refuse to provide information on where this site might be found. They question why Mr. Rawluk admitted further soil analyses were not necessary yet will not certify the site. They question the Department's belief that if naturally restricted soils are disturbed, the resulting restriction was due to disturbance not to the natural condition. They argue the criteria allow an 80% tolerance and thus the Department can not expect 100%. They questioned several procedures of the Department, including a required step out Mr. Janz did not do because he did not think it necessary.

[18] Cabre believes certification was rejected on the basis of interpretation rather than data. They state the site is reclaimed as established by definitive data and information interpreted in accordance with the criteria. Cabre said this is countered by Department opinions and interpretations, not supported by the criteria nor a level of assessment similar to Cabre's. Cabre submits the Department did not confirm the operator's information as required in the criteria, nor did they give a justification not to do it. Cabre argues the September 17, 1998 assessment was conducted completely contrary to accepted protocol, bringing the objectivity of the Department into serious question. They argue that by not responding to Mr. Groves' request for review, Mr. Lloyd is ignoring his responsibilities under IL/96-2.

The Department

[19] The inspector submits reclamation did not result in the site achieving an equivalent land capability. The inspector submits all inquiries and inspections were carried out in accordance with the criteria and the site was failed based on deficiencies. The inspector argues the criteria are only a tool in the decision making process, are not prescriptive of a decision and judgement will always need to be executed. The inspector argues airphotos are a visual indicator of site conditions but do not quantify specific problems. He submits it is not unreasonable that further problems and deficiencies could be noted as more inquiries and inspections occur. The inspector said the CLI is not meant as a detailed site assessment tool. He acknowledged salinity prior to construction but since salinity was also found on Chernozemic portions of the site it should not be tied back to preconstruction conditions.

Mr. Darrel Dzurko

[20] Mr. Dzurko submits the site is not suitably reclaimed due primarily to soil problems causing stress and uneven vegetation on the site. He said he has seen no evidence of saline discharge in the area since he moved to the land in 1989.

The Appellant's Reply

[21] Cabre submits the opinions expressed by the inspector are based primarily on visual observation resulting in qualitative conclusions, opinion, interpretation and conjecture. They argue the inspector did not differentiate between brown off from natural senescence and from lack of equivalent capability on site. They argue the 10 m by 15 m area is Solonetzic and was never disturbed. They further argue that to accept salinity in the Chernozemic sites, they would have to agree with the line drawn by Mr. Janz, ignore Mr. Rawluk's findings of salts on the NE side of the lease, use a baseline of zero, agree contamination criteria should apply to the site and have zero tolerance for homogenization. None of which they agree to.

ISSUES BEFORE THE BOARD

[22] The issue before the Board is whether the inspector erred in not issuing the Reclamation Certificate for lands located at LSD 12, Sec. 6, Rge. 38, TWP 3, M4.

CONSIDERATIONS OF THE BOARD

[23] One option available to the Board would be to send this file back to the parties to resolve. However, three inquiries and a formal site inspection have already been held, resulting in major differences of opinion and interpretation, among the parties. It was apparent that emotions run high among the parties with no move from any of them on the position they have presented throughout this case.(12) Thus the Board deems it prudent to complete the process at this point, especially given the evidence at this hearing.

[24] The Board has numerous concerns about the length of time for the certification process and the piecemeal way in which it was approached. It seems logical, given the variable nature of the site, that a full site inspection, at the level of assessment provided by Cabre, should have been conducted by the inspectors. This assessment should have occurred with both Cabre and Mr. Dzurko present. The Board is concerned that Mr. Dzurko appeared on the site at the time of the formal review, after waiving his right to be there, and pointed out a specific area of concern that was then assessed by the inspectors. Cabre had no opportunity to respond. The inspector said this area was not the sole reason for failing the site. The Board accepts this conclusion, but is nonetheless concerned about any practice on a site inspection, be it a formal review or an inquiry, that could be viewed as unfair to any party. The inspectors said they were concerned but did not know how to handle the situation. The Board suggests the inspection should have been cancelled and the parties all meet on site another day.

[25] The Board notes Cabre's straightforward and well documented evidence on all aspects of the criteria they addressed and the paucity of direct answers from the Department especially regarding appropriate controls and interpretations of criteria and deviations without rationale. The Board agrees with the Department that an inspector's function is to identify what does not meet criteria standards and it is not his or her function to tell the company what to do to fix the site. However, in an appeal, where everyone should have the best interest of the environment as their focus, expecting some direct answers to questions about what components of the criteria were not met, why they were not met, and what could be done to meet the criteria, does not seem unreasonable. These answers would have helped the Board considerably in determining if the inspectors were reasonable in their requirements and interpretations of the criteria. The Board was left with the distinct impression that although the inspector was not satisfied with the site reclamation, he provided no quantitative data to show where it did not meet criteria, and had no idea if it was possible to remedy the problems, or even what the problems were(13)relative to an appropriate control.

[26] The Board turned to the criteria, as it must, and focused on several key points to determine whether the inspectors erred in their decision not to issue a reclamation certificate to Cabre. The criteria clearly state the reclaimed site must be compared to an appropriate control(14)and that certification will depend on meeting allowable changes in site conditions on landscape, soils and vegetation parameters(15). It is clear the inspector is not limited to the assessment detail in the criteria to make his or her decision(16)nor reassess all locations(17). The criteria clearly indicate that under site-specific circumstances where the criteria do not fit, the inspector can use experience and judgement in interpreting the criteria(18)

[27] First the Board will address the issue of an appropriate control. Mr. Janz said he drew a straight line through the site separating Chernozemic and Solonetzic soils and used this to assess reclamation. He said all parties agreed to this line; Cabre said they did not agree with it. Mr. Janz said he did not sample on either side of the line to determine its accuracy but it was the best decision to make(19). Cabre presented evidence that soils on and off site were highly variable and the Board accepts this. The Board found no evidence to accept this line drawn by the Department.

[28] The inspectors did not show how they separated the control into Chernozemic and Solonetzic soils. If they were separating these soils on site, expecting them to have different characteristics after reclamation, they would need to do the same separation in the control. Cabre thought the controls they used were appropriate and explained to the Board's satisfaction how they were selected. If the inspectors did not agree, the onus was on them to clearly identify that concern to Cabre. Numerous times the Department mentioned the potential for using an area of similar nature for a control but could not even suggest where that might be, or if one existed that they would accept. The criteria say the operator may have to find it if they use it. Cabre chose to use land adjacent the lease, as they may according to the criteria, and indicated the variability in it. When they did their detailed assessment they compared Solonetzic controls to Solonetzic soils on site and Chernozemic controls to Chernozemic soils on site.(20)Furthermore, Cabre did their comparisons with the saline discharge area in perspective. Thus there was no onus on them to find a control away from the lease.

[29] The Department also used controls adjacent the lease on each field inspection. The Board thus concludes the inspector had no problem with that approach. However, on numerous occasions at the hearing, the Department indicated they were comparing to preconstruction conditions(21)not the adjacent control, and sometimes they were not even comparing to a particular control(22)

[30] The Board believes the control should have been discussed and agreed upon among the parties at the start of this process. The Board concludes the inspector erred in not meeting the basic fundamental principle of the criteria to measure reclamation success against an appropriate control.

[31] The remainder of the Board's considerations reflect deviations from procedures outlined in the criteria that the inspector allegedly made.

[32] The Board believes Mr. Lloyd did not err in deciding to turn the review requested by Cabre back to the inspector who did the original inquiries. Although it seems logical not to have a file referred back to the person who is being complained about, there are no provisions in the Act or the criteria to indicate this can not be done. Although the Board believes it prudent to have another person review the file, it can not say Mr. Lloyd or Mr. Onciul erred in not doing so.

[33] The Board concludes the inspector did not fatally err by using experience and judgement to interpret the criteria. However, there was little if any explanation to Cabre, or to the Board at the hearing, when this occurred and why. The Board concludes the rationale behind such interpretations must be explained to the other parties. The decision must also be logical and defendable. The Board thus agrees the inspectors could ask Cabre for soil data, particularly since this was a site with "a great deal of variability". However, such an approach should be explained to other parties involved. For example, the Board does not believe justification was given for requiring soil chemical analyses in light of the controls used by Cabre, and apparently accepted by the Department. Salts were seen in the controls and on the site. The chemical data provided by Cabre indicated all samples on site had lower salt parameters than off site controls. The Board concludes Mr. Janz is not being reasonable in expecting more direct comparison to preconstruction conditions, for which data do not exist in the first place. The Board believes reason must prevail in assessing older sites (constructed before these data were expected) that do not have preconstruction data. That is the purpose of adjacent controls.

[34] On numerous occasions at the hearing, the inspector indicated he did not sample the site in a concise, systematic manner, as required in the criteria. On the balance of the evidence before it, the Board found no acceptable rationale for this. The Board does not accept, for example, the line down the lease, the lack of assessment at Cabre's level of assessment, the lack of data analysis on minimum replacement and average control depths, the lack of a complete vegetation assessment. The Board concludes if the criteria indicate a tolerance, that tolerance should be allowed and numerically accounted for in spite of the inspectors' desire for 100% preconstruction characteristics.(23)The inspector erred in not following what was clearly laid out in the criteria to review the assessment of industry at the level which industry provided it. For example, profile restrictions were discussed but not measured.(24)The inspector further erred in not specifically responding to data and information that Cabre provided.

[35] The Inspector may, according to the criteria, spot check and will conduct step out assessments to confirm deficiencies.(25)The criteria clearly state that at each assessment location reviewed, the inspector "will", not may, "clearly describe all the deficiencies he or she identifies based on a level of assessment similar to the operator's". The Board concludes deficiencies were not clearly defined(26)and assessments occurred at a level inferior to those conducted by Cabre; thus the inspector erred.

[36] The criteria state if the industry assessment is obviously inaccurate, the inquiry could be stopped and the application cancelled. The Board concludes disagreeing on one hole, particularly based on qualitative interpretable observations(27), does not constitute an obvious inaccuracy. The Board notes the criteria indicate profile assessments should be deemed restrictive or non-restrictive. Much debate occurred between the inspector and Cabre about severely or moderately restricted. The inspector said he could assess any point on site on any inspection even though it had not been listed as a problem in a previous inspection. The Board agrees. However, the Board does not see consistency in the Department saying each inspection is a new inspection then referring back to a previous inspection for data.(28)For example, in the last field inspection, the Department found one sample hole on which they did not agree with Cabre. They did not do a step out or pursue this further in light of the tolerance allowed in the criteria because they found other sample holes in the previous inspection they did not agree on. They argue site conditions change from one inspection to another and therefore they must reassess and that Cabre can not use air and infra red photos because they are just a snapshot in time. They contradict this by saying they need not follow appropriate, justifiable protocol(29)on every inspection since inspections can be viewed as a composite. The Board believes standards should be followed by all parties at all field inspections.

[37] The criteria state vegetation will be assessed by visual comparison between grid and control. Thus the inspector did not err when assessing vegetation without quantitative data. However, the Board was not clear how the inspectors assessed vegetation, and had to rely on general comments that the site vegetation looked "different" than control vegetation. This is especially difficult for the Board to interpret when all parties agreed, and Cabre presented photos to show, off site was heavily grazed and on site was not grazed. The Board concludes in such a situation, the inspector should assess the site in more, rather than less, detail. The inspector said the vegetation was uneven on site, yet did not address, to the Board's satisfaction, how this was related to site reclamation.(30)

[38] The Board accepts Cabre's documented explanation that the vegetation was affected by paratilling. The Department could not identify the problem and presented no data to show specific problems, such as differences in species composition or height. It would have been helpful to the Board had either party assessed the vegetation in and between these rows and completed some root assessment. Although the Department and Mr. Dzurko said vegetation was browning when surrounding vegetation was green and lush, they provided no proof. Cabre, however, provided photos that clearly showed brownish vegetation on site in June 1998. The adjacent overgrazed control areas, contrary to what Mr. Dzurko and the inspector said, did not look lush and green but just as dried out with a few sparsely located green plants. No one could explain why vegetation in the paratill shank areas was green and lush when between row vegetation was browning. Mr. Janz said compaction was greater and nearer the surface in the green rows than between them. Yet he used the non-green areas of vegetation between paratill shanks to indicate vegetation was impacted by compaction. This is contradictory and can not be accepted by the Board.

[39] Mr. Rawluk said vegetation was even inside the fence but not even in the middle of the wellsite. His evidence would imply, as suggested by Cabre, that the uneven vegetation is likely due to the Solonetzic/Chernozemic patchwork of soils and the discharge area on the site. On numerous occasions the inspector discussed the difficulty comparing on and off site vegetation since off site is grazed. The Board can not then accept these differences as relating to lower than equivalent capability, especially since Cabre documented similar vegetation on the lease perimeter and in other portions of the lease. Mr. Rawluk explains that if vegetation is green, albeit short from grazing off site, compared to dry and browned off on lease, that implies affected capability. This was not addressed adequately in questions from the Board, when discussing the type of vegetation, the time of year and the potential time of senescence for different species at different stages of development (i.e. vegetative from grazing versus in early senescence due to drought). The Board found it difficult to reconcile Mr. Janz's statement that the vegetation had to be uniform across the site(31), yet he divided the site into two soil zones, each with very different potential plant responses(32).

[40] The Board concludes, on a balance of evidence, that Cabre gave a logical, well organized presentation based on quantitative as well as qualitative data. Most interpretations were supported by that data. The Department was unable to answer numerous questions and often had little if any written documentation or evidence to support their interpretations and claims. The Department had contradictory evidence that was further difficult to assess; especially, for example the use and designation of controls. The Board concludes the inspector erred in his assessments and failed to meet expectations of the criteria in conducting his assessment and the review process as a whole. The Board has no doubt lack of communication, cooperation and common sense led to the certification process being unnecessarily drawn out and convoluted, with the end result being this appeal to the Board. On the balance of evidence, Cabre was more convincing to the Board that it had met the current criteria than the Department was that the criteria had not been met.

[41] The Board must now decide if Cabre should have been issued a reclamation certificate. The Board finds Cabre's soils data and the rationale for control selection appropriate. They clearly indicated what controls were compared to what portions of the site. The Board did see evidence that the criteria, with allowable tolerances, were met.

[42] The Board can not say that the vegetation is even, and certainly the striping of the vegetation is not indicative of the normal variation in evenness that would be found in a Solonetzic or any other soil. The Board believes the very green and healthy looking vegetation in the rows as photographed in June 1998 is due to paratilling based on Cabre's data. It is likely soil bulk density was reduced in the paratill rows, which in turn led to increased infiltration in those areas. Thus, during a droughty period, the vegetation has more available water and will be greener and lusher than between paratill rows. It is difficult to say vegetation reflects a reclaimed site when such unnatural rows of vegetation are present during droughty periods.

[43] The Board can understand why this is a concern for the inspector, but reasonableness must be upheld. When between row areas are compared to adjacent off site vegetation, or to vegetation on parts of the lease that had not been disturbed or paratilled, there is a considerable improvement over what is off site. This may be due to the heavy overgrazed situation on the control. However, the ground cover meet the criteria as do the density values. Thus, quantitatively the vegetation is of equivalent capability. The Board also noted that when the vegetation was not water stressed the striping disappears. This is indicative of a hydrologic effect. Thus the vegetation is equivalent to or better than off site. The striping is an anomaly that can be explained and shows up only at drought periods. The between row vegetation is still healthier and taller than off site, even during a droughty period. The vegetation between rips is also equivalent to the areas near the fence that had not been ripped or grazed. The effect of the stripes is also indicative that the site, had it been more evenly ripped, would have been considerably better than the control. Since the between row areas are better than the control anyway it would indicate ripping was likely not needed.

[44] Thus the Board concludes the meeting of the criteria in all other areas, using appropriate controls, negates the anomaly of the uneven vegetation during droughty periods. The Board will make it clear, however, that they accept this only because the vegetation is on highly variable soils in the first place. Thus even vegetation could not be reasonably expected. The Board further concludes that the rational explanation by Cabre for why the striping occurs, coupled with the fact that poorer vegetation between rows meets criteria, is further justification for accepting this perspective.

RECOMMENDATIONS

[45] The Board recommends that pursuant to section 84(1)(i.11) and 91 of the Act the appeal be allowed and that the Department issue a reclamation certificate to Cabre Exploration Ltd. for lands located at LSD 12, Sec 6, Rge 38, TWP 3, M4, effective the date of this report.

[46] 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:

  • Cabre Exploration Ltd., represented by Mr. Howard Ward, counsel, Burstall Ward;
  • Mr. Darrel Dzurko; and
  • Conservation and Reclamation Officer, Alberta Environmental Protection, represented by Ms. Maureen Harquail, counsel, Alberta Justice.

 

COSTS

[47] The Board's decision on costs will follow in due course.

Dated October 29, 1999, at Edmonton, Alberta.

Dr. M. Anne Naeth
Dr. Ted W. Best
Dr. Curt Vos


ORDER

I, Gary Mar, Minister of Environment, pursuant to Section 92 of the Environmental Protection and Enhancement Act, hereby order:

1.    That the decision of the Conservation and Reclamation Officer, dated November 16, 1998, refusing to issue a reclamation certificate to Cabre Exploration Ltd. for lands located at LSD 12, Sec. 6, Rge. 38, TWP 3, M4 be reversed and that a reclamation certificate issue for such lands effective October 29, 1999.

Dated at City of Edmonton, in the Province of Alberta, this 16th day of December 1999.

Honourable Gary Mar, Q.C.
Minister of Environment


FOOTNOTES

 

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

2. Written Submission of Cabre Exploration Ltd., Tab 11, letter of November 6, 1999 from Mr. Ron Groves to Mr. David Lloyd.

3. Written Submission of Cabre Exploration Ltd., Tab 1.

4. Written Submission of Cabre, Appendix to Direct Evidence of Mr. Michael Melnyk.

5. Soils with a subsurface horizon (Bnt) containing sodium salts and high bulk densities that can be inhospitable for plant root growth and development.

6. An instrument to assess salts in the soil.

7. From the hearing record, the Department panel stated: "Based on a similar level with as many grids, no, we didn't, sir".

8. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 4, the definition of Step-Out Assessment states:

"When an anomaly is encountered at an assessment location, the operator may opt to conduct a 'step-out' assessment to determine if it is representative of the whole grid or not. A step-out consists of assessing a minimum of an additional 3 locations. These additional locations will be 3 m from the original point in a triangular shape around it. The average of these three locations is reported for those parameters where numbers are provided (e.g., soil depth). The original location data are not reported."

9. Soils that would not have the salt and bulk density effects of the Solonetzic soils.

10.Growing outside the soil peds or smallest units.

11. CLI - Canadian Land Inventory.

12. Under cross examination by Mr. Ward, Mr. Rawluk stated in the hearing record "The rationale for having a review by ourselves, myself and Mr. Janz, was to try and eliminate the ongoing problems we had in June where emotions got fairly intense.".

13. In the hearing record, during cross examination, Mr. Ward asked Mr. Rawluk "I'm just asking you if you are aware of any operations that could be conducted that would resolve the problems you have noted, and I'm asking what those operations might be." Mr. Rawluk answered "I'm not prepared to answer that because I don't believe we know the full extent of the problem.".

14.Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 1, para 1, states:

The fundamental principle of these criteria is that the success of land reclamation is measured against the original (pre-construction) or representative (adjacent) site conditions with due consideration for construction norms at the time of the development. In cases where pre-construction data are not available, the land, soil and vegetation adjacent to the site will be used as a comparison. However, in special cases, the operator may have to find representative land, soil and vegetation a short distance from the site; the reasons for doing this must be explained in the application and to the Conservation and Reclamation Inspector (CRI) at the inquiry.

15. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 1, para 2, states: "The certification criteria describe the allowable changes in site conditions. They typically require landscape, soils and vegetation assessments.".

16. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 2, para 3, states:

Assessment density and level of detail described in the following sections are the minimum acceptable. On sites with a great deal of variability, or sites where justification for deviation from the criteria is submitted, more detail may be required. The CRI is not limited to the methods identified in the following sections to make his or her assessment.

17. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 2, para 4, states

When the inquiry is held and the CRI identifies a deficiency, he or she will continue to evaluate the site. The CRI may not reassess all the locations; instead, spot checks will be done and the CRI will conduct step-out assessments to confirm deficiencies. At each assessment location reviewed, the CRI will clearly describe all the deficiencies he or she identifies based on a level of assessment similar to the operator's. This will ensure that the operator receives one description of deficiencies for the site that can be addressed at one time. However, if the industry assessment is obviously inaccurate, the CRI will stop the inquiry, clearly document their findings, and cancel the application.

18. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 2, para 2, states:

However, there will be site-specific circumstances where the criteria do not fit; the CRI will use his or her experience and judgement in interpreting the criteria on these sites.

19.In the hearing record, under questioning from the Board, Mr. Janz said "So a straight line is a lot better than a curved line if you don't know what's there, because you have no basis to make a curved line.".

20. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 9, para 1, states:

Where control site characteristics vary significantly, the operator may use relevant controls to represent portions of the site.

21. In the hearing record, under cross examination by Mr. Ward, Mr. Janz said "The company did not provide us the pre-site information. We were not there, so we have to make an estimate of what could have been there prior to the disturbance.".

22. Mr. Janz, in responding to questions from the Board about using a particular control area said in the hearing record "No, I did not." He further stated "I'm assuming that there is a representative control nearby" and "No, I'm not saying it's too high. I'm saying I need to be sure that that number is representative of what would have been there prior. Since they don't have those numbers, I like to see a number from a representative control area, and I can compare the two, and I can say, yeah, they are very similar, that's good enough." When asked if he found any chemical data that were high enough to be concerned about he said "That's not the question. Because if it's a saline discharge, the numbers likely will be high. But have they done something to that area? Have they exposed something? Have they brought more saline soils to the surface? And that's what I need to know. If they have done that, then I...I need a comparison with a representative discharge area nearby.".

23. In the hearing record under cross examination by Mr. Ward, Mr. Janz said "The criteria provide the minimum requirements, and there is no case where an operator should be, as his goal, deciding to meet 80%. The goal should always be 100%.".

24. When Mr. Ward asked Mr. Rawluk if he had any comparative data to conclude the restrictions off site were less than on site, in the hearing record he replied "I will tell you how we do our profile restrictions. We can use a penetrometer, except I don't particularly feel comfortable with them. We use the shovel test. It's a judgement call. If it's harder, if it's more difficult to dig, if we have soil layering, if we have exped roots, if we have a number of things. A lot of it is the feel, when you're digging and you are looking at roots. Again, you are looking at a number of things. It's a judgement call, yes.".

25. See footnote 8.

26. In the hearing record under cross examination by Mr. Ward, Mr. Janz discussed the capability ratings for the Chernozemic soils he assessed "According to my calculations, that area would have a rating, a final soil rating, of 22 points out of 100." When asked what ratings he had for the control he said "For the control area I have a rating, final soil rating of 48." When asked if that information appeared in the report he said "No, it doesn't." and "That would be the first time you heard of my calculations, that's correct." When the Board asked if he might conceivably find some areas off site that could be 22 points he said "Could be." He said he never tested it "No, I didn't do that calculation.".

27. In the hearing record under cross examination by Mr. Ward, Mr, Janz said he only had a problem with hole number 4 but "it would be representative of a somewhat larger area than hole number 4". When asked how much of a larger area he said "I wouldn't be prepared to say. I would have to do an extensive examination of the area to determine that." Mr. Rawluk said whether a restriction was moderate or severe was "...a matter of interpretation.".

28. In the hearing record under cross examination by Mr. Ward, Mr. Rawluk stated that "We had already made our determination in June that we were not going to pass the site based on other parameters, other factors." Mr. Janz said "One hole on September 17. Our previous June 23 inquiry, we dug several other holes nearby. I wouldn't know exactly which grids they were in, probably closer to S12, somewhere in that vicinity, which would be just over from that, found the same thing.".

29. In the hearing record, Mr. Janz said "I felt very comfortable that the level of investigation or inspection that I had done indicated to me that the criteria had not been met on this site, and, for that reason, I did not think it necessary to do the legal step out as required in the criteria." Note the criteria state "The CRI may not reassess all the locations; instead, spot checks will be done and the CRI will conduct step out assessments to confirm deficiencies." (Emphasis added).

30. In the hearing record Mr. Rawluk under cross examination by Mr. Ward said "I have been on that site when it looked green across the site and looked healthy across the site after periods of rain, yes, I have." "...but if I have cattle eating across the wellsite...a dry summer, and it still appears to be green, albeit only five centimeters high. I've got a situation on the wellsite where the cattle have been kept out. No one has mowed the site. It's brown. It's stressed. There is a problem." Mr. Rawluk said "If we were comparing just the west half to the east half, there certainly is going to be a visual difference because you are dealing brome grass to alfalfa.".

31. Written Submission of the Department, Tab 1, Reclamation Criteria for Wellsites and Associated Facilities - 1995 Update, p. 19, states: "The required cover must be evenly distributed on the site or be similar to the distribution on the control.".

32. In the hearing record under questioning from the Board, Mr. Janz said "If it's not uniform, that tells me that there is something different about a certain area where the vegetation is different, and that's what I use then to make the determination as to where I will locate my soils inspections to see if there is something different about the soils.".

 

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