Legal and Regulatory Considerations in Plant Decommissioning and Rationalization Plans

The liability of owners and operators of sites contaminated by industrial activity is imposed at common law and by statute. Under the statutory regime prior to the new Alberta Environmental Protection and Enhancement Act ("AEPEA"), the scope of liability was generally limited to ongoing operations and arguably extended to the active remediation of the site. Further, past owners of industrial sites escaped liability for their pollution-causing activities. Under the AEPEA, more stringent provisions exist that govern the decommissioning process, including significantly increased penalties for non-compliance and the indirect imposition of liability upon past owners and non-operators for pollution-causing events that occurred in the past or during the decommissioning process. The authors recommend a regulatory strategy in regard to a program of site decommissioning associated with gas processing capacity. They point out that potential conflicts arise between the new Environmental Appeal Board ("EAB") and the Energy Resources Conservation Board ("ERCB") as to their respective roles in the rationalization plan approval process. In order to avoid the potential for duplication of public hearings before the EAB and ERCB, the authors recommend that processing capacity rationalization proponents consider submitting an omnibus application to the ERCB detailing all the activities required to implement the rationalization plan.