Investigations

Overview
When a company does not follow AER requirements, the AER takes steps to stop the noncompliant activity, restore the environment, and if necessary, apply enforcement action against the responsible party.

The AER works hard to ensure this process is timely, fair, and transparent.

When the AER finds that an operator is in noncompliance, two distinct processes begin:

1. Abatement and Remediation: The AER requires that the responsible party immediately take appropriate action to stop the offence and restore the environment. Abatement or remedial actions can include

  • issuing a notice of noncompliance,
  • suspending or shutting down operations,
  • suspending a licence,
  • issuing enforcement orders, and
  • issuing environmental protection orders. 

2 Investigation: This process involves gathering evidence to determine whether punitive enforcement action is needed to change industry behaviour. Punitive enforcement action can include

  • warning letters,
  • administrative penalties,
  • prosecutions, and
  • suspension, cancellation, or restrictions on a licence, permit, or approval.

Initiating an Investigation
The AER uses six criteria to determine whether an investigation should be opened:

  • Did the noncompliance cause, or potentially cause, an adverse effect to the environment?
  • Has the responsible party carried out an unauthorized activity or exceeded an authorized limit?
  • Is there evidence that suggests the noncompliance was conducted knowingly, willfully, or with demonstrated disregard?
  • Does the responsible party have a history of noncompliance?
  • Has the responsible party failed to report required information?
  • Has the responsible party provided false or misleading information? 

Investigations Process
When an energy-related incident occurs, a notification is immediately sent to the AER Investigations Team. The Investigations Team reviews the situation using the above criteria to determine whether an investigation is required.

The AER may also identify noncompliances that are not the result of an energy incident. The Investigations Team also reviews these situations to determine whether an investigation is required. These investigations are managed using a triage process.

The triage process provides a set period of time for the noncompliance to be submitted and reviewed, and a decision rendered. This process is designed for proactive or reactive inspections or audits where time is needed to collect the details.

The Goal of an Investigation
The goal of an investigation is to collect information to confirm whether a contravention has occurred and to identify the responsible party. An investigation also examines the root cause of the noncompliance and looks for opportunities to improve industry practices. 
To do this, AER investigators must

  • determine whether a regulation has been broken,
  • identify the responsible parties, and
  • identify areas for continuous improvement to enhance industry performance. 

Investigations at the AER are conducted in three phases:

Phase 1: Evidence Collection / Incident Response
In phase 1, an investigator gathers initial evidence to assess the complexity of the investigation and to develop an investigation strategy. This phase can include conducting initial site visits, assessing incident response activities, taking statements, requesting information from the responsible party, and gathering historical background information.

Phase 2: Analysis and Interpretation
In phase 2, an investigator evaluates the evidence to determine whether an offence has taken place. In this phase, additional information is often requested after the investigator has had an opportunity to review the initial information.

Phase 3: File Preparation and Enforcement Decision

In phase 3, the investigator completes a summary report and presents the file to the statutory decision-maker to determine what, if any, enforcement action is required. A statutory decision-maker is an AER manager or director who has been delegated the authority to exercise legislative powers to assess penalties. The investigation will remain in this phase until the enforcement action is completed. An investigation is completed when the decision is rendered and the penalty is paid or the enforcement action (suspension) is carried out. Once completed, the investigation summary will be posted to the Compliance Dashboard.

Investigation Outcomes
An investigation can take anywhere from three months to the full two years allowed under the legislation. The time an investigation takes can be affected by the complexity and severity of the alleged noncompliances and the number of investigations underway at the time.

When an investigation is complete, a summary report is completed. These reports document the investigation’s findings and provide the information necessary to ensure an appropriate outcome, including whether punitive enforcement action is warranted.

Enforcement action can include

  • warning letters,
  • administrative penalties,
  • prosecutions, and
  • suspension, cancellation, or restrictions on a licence, permit, or approval.

Abatement and remediation actions may also be recommended through the investigation process. Abatement and remediation tools require the responsible party to immediately take action to stop the offence and restore the environment. Abatement or remedial actions can include

  • suspending a licence,
  • suspending or shutting down operations,
  • enforcement orders, and
  • environmental protection orders,

Appeal Process
The Responsible Energy Development Act allows licensees to appeal certain decisions made by the regulator.

Closing an Investigation
Upon conclusion of an investigation and the completion of any enforcement (if warranted), the investigation will be closed an investigation summary report will be posted to the Compliance Dashboard. Archived investigation reports can continue to be found here.

Enforcement Reporting
After an investigation has been closed, an investigation summary and any enforcement actions will be posted to the AER’s Compliance Dashboard (link). Investigations, compliance activity, and enforcement action reporting is updated monthly and can include

  • warning letters,
  • closure letters,
  • director decisions on administrative penalties, and
  • links to judicial decisions.