Board Administrative Procedures Regulation

Link to law: http://www.qp.alberta.ca/1266.cfm?page=2001_268.cfm&leg_type=Regs&isbncln=9780779778843&display=html
Published: 2014

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AR 268/2001 BOARD ADMINISTRATIVE PROCEDURES REGULATION (Consolidated up to 32/2014)
ALBERTA REGULATION 268/2001
Agricultural Operation Practices Act
BOARD ADMINISTRATIVE PROCEDURES REGULATION
Table of Contents
                1      Interpretation
Applications, Submissions
                2      Approval, registration application
                4      Authorization required
                6      Additional information and particulars
                7      Withdrawal of application
                8      Notice of application
                9      Copy of application
              10      Filing submissions
              11      Applications by directly affected parties, affected persons
              12      Copies of submissions, applications
              13      Filing of additional material
              14      Application for review
              15      Notice of review Process Procedures
              16      Variation of procedures
              17      Notice to attend
              18      Oath or affirmation
              19      Presentation of submissions
              20      Direct evidence
              21      Examination of witnesses
              22      Hearings in the absence of the public
              23      Submissions by Board staff and experts
              24      Arguments
              25      Written hearings
              26      Approval officer amendment
              27      Evidence not confidential
              28      Board directions
              29      On‑site visits
              30      Amendments of proceedings
              31      Enlargement or abridgement of time
              32      Failure to comply with Regulation
              33      Notice
              34      Revisions to documents
              35      Affidavits
              36      Evidence
Acquisition of an Approval, Registration, Authorization
              37      New owner
Inspectors
              38      Identification of inspectors
Expiry, Coming into Force
              39      Expiry
              40      Coming into force
Interpretation
1(1)   In this Regulation,
                               (a)    “Act” means the Agricultural Operation Practices Act;
                              (b)    “Crown” means Her Majesty the Queen in right of Alberta;
                               (c)    “document” includes films, photographs, charts, maps, graphs, plans, surveys, books of account, transcripts and video and audio recordings;
                              (d)    “electronic hearing” means an oral hearing conducted by conference telephone call or other electronic means where each participant is able to hear and respond to the comments of the other participants at the time the comments are made;
                               (e)    “hearing” means a hearing before the Board;
                               (f)    “land surveyor” means an Alberta land surveyor as defined in the Land Surveyors Act;
                               (g)    “oral hearing” means a hearing at which the participants attend in person before the Board;
                              (h)    “professional engineer” means a professional engineer under the Engineering and Geoscience Professions Act;
                               (i)    “representative” means the agent or solicitor of a person;
                               (j)    “written hearing” means a hearing held by means of an exchange of documents whether in writing or in electronic form.
(2)  In this Regulation a reference to an application for an approval, registration or authorization includes an application for an amendment of an approval, registration or authorization.
AR 268/2001 s1;170/2012
Applications, Submissions
Approval, registration application
2(1)  An applicant for an approval or for a registration must file an application with an approval officer in a form satisfactory to the Board.
(2)  An approval officer may require an application referred to in subsection (1) to contain any one or more or all of the following:
                               (a)    the name, address and telephone number and the fax number and e‑mail address, if any, of the applicant;
                              (b)    a list of the affected persons;
                               (c)    a statement of whether the application is consistent with the applicable municipal development plan;
                              (d)    construction plans for one or more of the following:
                                        (i)    manure storage facilities;
                                      (ii)    manure collection areas;
                                     (iii)    surface water control systems;
                               (e)    hydrogeological assessments as required by an approval officer;
                               (f)    a soils investigation as required by an approval officer;
                               (g)    the numbers and species of livestock and stage of animal development of the livestock that will be at the confined feeding operation;
                              (h)    the legal description of the land on which the confined feeding operation is located;
                               (i)    a site plan showing the location of all
                                        (i)    water bodies,
                                      (ii)    water wells,
                                     (iii)    property lines,
                                     (iv)    residence locations of affected persons,
                                       (v)    barns, corrals and pens,
                                     (vi)    manure storage facilities and manure collection areas, and
                                    (vii)    surface water control systems, if required by an approval officer;
                               (j)    an explanation of how the confined feeding operation or expansion and its operation will meet the requirements of the regulations under the Act;
                              (k)    the legal description of the land where manure, composting materials and compost are to be applied during the first year of operation after the granting of the application;
                               (l)    evidence that the applicant complies or will comply with sections 24 and 25 of the Standards and Administration Regulation (AR 267/2001);
                             (m)    evidence that the applicant complies or will comply with section 10 of the Standards and Administration Regulation (AR 267/2001);
                              (n)    any other information required by an approval officer.
(3)  An approval officer may require that documents filed under subsection (2) be prepared by a professional engineer, a land surveyor or a member of another appropriate profession and may, if applicable, require that the documents be stamped.
AR 268/2001 s3;88/2004;226/2006
3   Repealed AR 226/2006 s3.
Authorization required
4(1)  An applicant for an authorization must file an application with an approval officer in a form satisfactory to the Board.
(2)  An approval officer may require an application referred to in subsection (1) to contain any one or more or all of the information and documents referred to in section 2(2), as required by an approval officer.
(3)  An approval officer may require that documents filed under subsection (2) be prepared by a professional engineer, a land surveyor or a member of another appropriate profession and may, if applicable, require that the documents be stamped.
(4)  For the purposes of this section, references in section 2(2)(h) and (j) to a confined feeding operation are to be read as a reference to a manure storage facility.
AR 268/2001 s4;226/2006
5   Repealed AR 226/2006 s5.
Additional information and particulars
6(1)  An approval officer may require an applicant to provide any additional information or particulars that an approval officer considers necessary to complete or supplement the application.
(2)  Repealed AR 226/2006 s6.
(3)  If, in the opinion of an approval officer, an applicant fails to provide additional information or particulars under this section, the approval officer must give notice to the applicant specifying the information or particulars required.
(4)  If the applicant fails to provide particulars within 6 months of the approval officer’s notice, the approval officer may defer consideration of the application or deny the application in accordance with section 18(3) of the Act.
AR 268/2001 s6;226/2006
Withdrawal of application
7   If an applicant wishes to withdraw an application before a decision on the application is made, the applicant must file a written notice of withdrawal of application with an approval officer and an approval officer must give notice of the withdrawal to the directly affected parties.
AR 268/2001 s7;226/2006
Notice of application
8   A notice of an application if required under Part 2 of the Act must
                               (a)    include a description of the subject‑matter of the application and the name of the applicant,
                              (b)    state the time and place at which
                                        (i)    affected persons may file submissions concerning the application, and
                                      (ii)    in the case of an application for an approval or a registration, persons may file applications for directly affected party status,
                               (c)    state where and when the copies of the application under Part 2 of the Act and the information and particulars filed in support of the application will be available at a location open to the public, and
                              (d)    repealed AR 226/2006 s8,
                               (e)    state any other particulars an approval officer requests.
AR 268/2001 s8;226/2006
Copy of application
9(1)  From the date of publication of a notice, if any, related to an approval or a registration or until the latest date for making an application under section 19(4) of the Act in the case of an approval or under section 21(3) of the Act in the case of a registration, as set out in the notice, an approval officer must supply a copy of the application including information and particulars to any affected person requesting them.
(2)  The notice under subsection (1) must state where the application is available for viewing by the public pursuant to section 19(3) of the Act.
AR 268/2001 s9;226/2006
Filing submissions
10(1)  A submission or application under Part 2 of the Act must be filed with the Board, and it is deemed to be filed at the time it is actually received at the office of the Board irrespective of when or how it may have been sent.
(2)  A submission or application actually received at the office of the Board later in the day than the Board’s normal business hours is deemed to have been filed on the next day that the office is open.
Applications by directly affected parties, affected persons
11(1)  Subject to subsection (2), an application
                               (a)    by a directly affected party or an application for directly affected party status pursuant to section 19(4) or 21(3) of the Act must be filed with an approval officer, and
                              (b)    by a person or organization determined under section 19 or 21(5) of the Act not to be a directly affected party to have the Board reconsider the person’s or organization’s directly affected party status pursuant to section 20(6) or 22(5) of the Act must be filed with the Board.
(1.1)  An application under subsection (1) must be in writing and contain the following:
                               (a)    a concise statement indicating
                                        (i)    the manner in which the directly affected party or the applicant’s interests may be directly affected by a decision of an approval officer or of the Board,
                                      (ii)    the nature and scope of the directly affected party’s intended participation,
                                     (iii)    the facts proposed to be shown in evidence,
                                     (iv)    the disposition of the proceeding advocated, if any,
                                       (v)    the reasons why the decision should be made in the manner advocated, and
                                     (vi)    the efforts made, if any, to resolve issues associated with the proceedings directly with the applicant for the approval, registration or authorization;
                              (b)    the name, address in Alberta and telephone number and the fax number and e‑mail address, if any, of the directly affected party or the applicant;
                               (c)    if the applicant has a representative, the name, address in Alberta and telephone number and the fax number and e‑mail address, if any, of the representative.
(2)  The Board may permit an applicant or a directly affected party to amend or to add to the statement filed under this section.
(3)  If a submission or application contains a technical report or material of a technical nature, it must set out the technical qualifications of the person signing or taking responsibility for the report or material.
AR 268/2001 s11;226/2006
Copies of submissions, applications
12(1)  On receipt of a submission or an application under section 11, an approval officer or the Board may direct, orally or in writing, that the applicant or the representative supply in a manner specified by an approval officer or the Board additional copies of the submission or the application to the approval officer or the Board and to any other persons.
(2)  If the submission or application relates to an approval, an approval officer or the Board must deposit, for examination only, a copy of the submission or the application and the documents filed in support of it at the public location set out in the notice.
AR 268/2001 s12;226/2006
Filing of additional material
13   After the date referred to in the notice, if any, no additional information for an application or submission may be filed in respect of an application or submission by or on behalf of a directly affected party or the applicant unless it is at the request of  or with the leave of an approval officer or the Board.
AR 268/2001 s13;226/2006
Application for review
14(1)  An application for a review under section 20(5), 22(4), 23(3) or 41(1) of the Act must be in writing and contain the following:
                               (a)    a clear and concise statement of the facts relevant to the application;
                              (b)    the grounds on which the application is made;
                               (c)    a brief explanation as to the nature of the prejudice or damage that has resulted or will result from the decision or enforcement order;
                              (d)    a brief description of the remedy sought;
                               (e)    the name, address in Alberta and telephone number and the fax number and e‑mail address, if any, of the applicant;
                               (f)    if the applicant has a representative, the name, address in Alberta and telephone number and the fax number and e‑mail address, if any, of the representative.
(2)  An application for a review must be filed with the Board and notification of it must be given by the Board to the directly affected parties to the application for the approval, registration or authorization or to the other persons to whom an enforcement order is directed.
(3)  A directly affected party who receives a notice of an application for review under subsection (2) and has an adverse interest with respect to the application for review may file a response with the Board with respect to the matters raised in the application for a review in accordance with the directions provided by the Board.
AR 268/2001 s14;226/2006
Notice of review
15(1)  If the Board schedules a review of the decision of an approval officer, the Board must provide a notice of its decision to schedule, in accordance with section 25 of the Act, a review to the directly affected parties.
(2)  A notice under subsection (1) must
                               (a)    briefly described the subject‑matter of the review,
                              (b)    state the process by which the Board will conduct the review,
                               (c)    if the review relates to an approval, state the location where the information and particulars filed with respect to the review may be viewed by the public,
                              (d)    state the name and location of the subject‑matter being reviewed,
                               (e)    if considered appropriate by the Board, state the time and place for the filing of submissions related to the review, and
                               (f)    state any other particulars that the Board sees fit.
Process Procedures
Variation of procedures
16   If it appears to the Board that, because of the complexity of the subject‑matter or for any other reason, it is desirable, with respect to an application or other proceedings related to an application, to vary the procedures set out elsewhere in this Regulation, the Board may do so.
Notice to attend
17(1)  The Board may, on its own initiative or at the request of a directly affected party, issue a notice requiring a person to attend a meeting, an oral hearing or an electronic hearing as a witness and to produce the documents and material set out in the notice.
(2)  The provisions of the Alberta Rules of Court (AR 124/2010) relating to the payment of allowances to witnesses apply to oral hearings and electronic hearings.
(3)  Despite subsection (2), the Board may increase the amount payable to an expert witness or in special circumstances where a witness attends an oral hearing or an electronic hearing as a result of a notice to attend.
AR 268/2001 s17;88/2004;164/2010
Oath or affirmation
18   Unless the Board otherwise directs, a witness at an oral hearing or an electronic hearing must be examined orally on oath or affirmation.
Presentation of submissions
19(1)  At a hearing or other proceeding in which evidence is presented, unless the Board otherwise provides, all submissions must be presented by a witness who prepared the submission, supervised or participated substantially in the preparation of the submission or otherwise has special knowledge of the submission.
(2)  A witness presenting a submission is confined to matters adequately set out in the submission, unless the Board otherwise directs.
(3)  A witness presenting a technical report or evidence of a technical nature must, on the witness’s first appearance before the Board to present the technical testimony, state the witness’s technical qualifications.
Direct evidence
20(1)  The Board shall not receive evidence unless
                               (a)    it is for the establishment of allegations in the application or submission of the person presenting the evidence, or
                              (b)    it arises from evidence presented in cross‑examination.
(2)  The Board shall not receive argument unless it is based on the evidence before the Board.
(3)  During a recess of an oral hearing or electronic hearing, a witness who is under cross‑examination may consult with the witness’s counsel if it is necessary to respond to the undertakings made before the Board.
Examination of witnesses
21(1)  No cross‑examination of a witness is permitted other than cross‑examination by or on behalf of a directly affected party.
(2)  A witness may be examined by the Board, by experts retained by the Board or by the Board staff.
Hearings in the absence of the public
22(1)  Subject to subsections (2) and (3), all oral hearings and electronic hearings are open to the public.
(2)  If the Board considers it necessary to prevent the disclosure of intimate personal, financial or commercial matters or other matters because, in the circumstances, the need to protect the confidentiality of those matters outweighs the desirability of an open hearing, the Board may conduct all or part of the hearing in private.
(3)  If all or any part of an oral hearing or an electronic hearing is to be held in private, no party may attend the hearing unless the party files an undertaking stating that the party will hold in confidence any evidence heard in private.
Submissions by Board staff and experts
23(1)  If, in the opinion of the Board, it is necessary for the applicant to be made aware of the views of the Board staff or of an expert hired by the Board, a submission by a Board staff member or the expert may be filed and presented at a hearing or other proceeding in accordance with the provisions applicable to submissions of directly affected persons.
(2)  The Board staff member or expert who has been hired by the Board and whose submission has been filed and presented at a hearing or other proceeding may be examined by the Board and may be cross‑examined by or on behalf of the applicant or directly affected person.
Arguments
24   Arguments must be in a form as directed by the Board.
Written hearings
25(1)  If the Board holds a written hearing, it may
                               (a)    dispose of the proceeding on the basis of the documents filed by the directly affected parties, or
                              (b)    require additional information and material from the directly affected parties before disposing of the proceeding.
(2)  The Board may determine at any time during a written hearing that the proceeding must be disposed of by means of an oral hearing or an electronic hearing.
Approval officer amendment
26(1)  In accordance with section 23 of the Act, an approval officer may, on the approval officer’s own initiative, consider an amendment of an approval, registration or authorization.
(2)  When acting under subsection (1), the approval officer must provide the holder of the approval, registration or authorization with
                               (a)    a clear and concise statement of facts setting out the matters that caused the approval officer to initiate the consideration,
                              (b)    a copy of any evidence or information that the approval officer staff intends to consider, and
                               (c)    a statement by the approval officer of the amendment being sought.
Evidence not confidential
27(1)  Subject to this section, all documents filed in respect of a proceeding became part of the record of the proceeding and may be made available to the public.
(2)  The Board shall not release the identity of a person who submits a complaint to the Board if the complaint is submitted in confidence.
(3)  If an applicant or a directly affected party wishes to keep confidential any information in a document, the party may, before filing the document, file a request for confidentiality.
(4)  The request for confidentiality must
                               (a)    be in writing,
                              (b)    briefly describe
                                        (i)    the nature of the information in the document, and
                                      (ii)    the reasons for the request, including the specific harm that would result if the document were available to the public,
                                  and
                               (c)    indicate whether all or only a part of the document is the subject of the request.
(5)  The Board may, with or without a hearing, grant a request for confidentiality on any terms it considers appropriate
                               (a)    if the Board is of the opinion that disclosure of the information could reasonably be expected
                                        (i)    to result in undue financial loss or gain to a person directly affected by the proceeding, or
                                      (ii)    to harm significantly that person’s competitive position,
                                  or
                              (b)    if
                                        (i)    the information is personal, financial, commercial, scientific or technical in nature,
                                      (ii)    the information has been consistently treated as confidential by a person directly affected by the proceeding, and
                                     (iii)    the Board considers that the person’s interest in confidentiality outweighs the public interest in the disclosure of the proceeding.
(6)  If the Board grants a request for confidentiality under subsection (5), a party may only receive a copy of the document if the party files an undertaking stating that the party will hold the document in confidence and use it only for the purpose of the proceeding.
(7)  Nothing in this section limits the operation of any statutory provision that protects the confidentiality of information or documents.
(8)  The Board shall not release a report of an inspection pursuant to section 30 of the Act unless an enforcement order, arising from the report, is issued by the Board and a person to whom the enforcement order is directed requests a copy of the report.
Board directions
28(1)  At any time before the disposition of an application or proceeding, the Board may issue any directions that it considers necessary for the proper consideration and disposition of any issue.
(2)  In conducting a review the Board may issue any directions that it considers necessary for conducting the review, including requesting any one or more or all of the documents and other matters that may be required by an approval officer under section 2, 4 or 6, and may require that the documents be prepared by a professional engineer, a land surveyor or a member of another appropriate profession and may, if applicable, require that the documents be stamped.
AR 268/2001 s28;226/2006
On-site visits
29   Pursuant to section 24 of the Act, the Board may, in its discretion and in any manner it chooses, direct that an on‑site visit of the proposed project be conducted to better determine any matter relevant to the disposition of an application or proceeding before it.
Amendments of proceedings
30   Notwithstanding the other provisions of this Regulation, the Board may allow or may order to be amended or struck out any matters that, in the opinion of the Board, are irrelevant or may tend to prejudice, embarrass or delay a fair review, on the merits, of an application or other proceeding.
Enlargement or abridgement of time
31   The Board may, on any conditions it considers proper, enlarge or abridge the time periods set out in this Regulation for doing anything or commencing any proceedings.
Failure to comply with Regulation
32(1)  If a party fails to comply with this Regulation or a direction of the Board respecting an application, submission or review, the Board may
                               (a)    make an order that the Board considers appropriate to ensure the fair determination of an issue, or
                              (b)    adjourn the proceeding until it is satisfied that this Regulation or the direction of the Board has been complied with.
(2)  If a party fails to comply with a time limit specified in this Regulation or by the Board for the filing of documentary evidence or other material, the Board may disregard the documentary evidence or material.
(3)  No proceeding is invalid by reason of a defect or other irregularity in form.
Notice
33(1)  Subject to subsection (2), notice required to be given under the Act or this Regulation may be given
                               (a)    by personal delivery,
                              (b)    by courier service, ordinary mail, fax or electronic means to the address given by the person, or
                               (c)    by any other method that the Board directs.
(2)  Notification that includes a document may only be given by electronic means if the person being notified has the information technology, equipment, software and processes for receiving or retrieving the document.
(3)  The date of giving notice of a document is that day on which the person being given notice receives the document unless it is received after 5 o’clock in the afternoon Mountain Standard Time, in which case the date of notice is deemed to be the next business day.
(4)  The Board may require a person to file an affidavit of service setting out to whom notice was given and the means taken to give notice.
(5)  Where an oral hearing or an electronic hearing is in progress, a party entering a document as an exhibit must provide copies of the document to the Board, the Board staff attending the hearing and the directly affected parties.
(6)  The Board may direct the applicant to give a notice issued by the Board either in accordance with this section or by public advertisement in a daily or weekly newspaper in circulation in the community affected by the proceeding.
(7)  Any notice required to be given under this Regulation may be given to a representative.
Revisions to documents
34(1)  Despite any other provision in this Regulation, the Board may, on any terms it considers appropriate,
                               (a)    allow a revision of all or any part of a document, or
                              (b)    order the revision of all or any part of a document that, in the opinion of the Board, is
                                        (i)    not relevant or may tend to prejudice or delay a fair consideration, on the merits, of an application or other proceeding, or
                                      (ii)    necessary for the purpose of determining the pertinent questions in issue in the proceeding.
(2)  A directly affected party must revise a document if
                               (a)    significant new information relating to the document becomes available before the proceeding is disposed of, and
                              (b)    the information is necessary for the purpose of determining the pertinent questions in issue in the proceeding.
(3)  Any document that is revised must clearly indicate the date of the revision and the part of the document that is revised.
Affidavits
35(1)  An affidavit intended to be used in a proceeding must be confined to those facts within the knowledge of the person making the affidavit or based on the information and belief of the person making the affidavit.
(2)  If a statement is made in an affidavit on information and belief, the source of the information and the grounds on which the belief is based must be set out in the affidavit.
(3)  If an affidavit refers to an exhibit, the exhibit must be marked as such by the person making the affidavit and attached to the affidavit.
Evidence
36(1)  Unless the Board otherwise directs, if a directly affected party intends to present documentary evidence at an oral hearing or an electronic hearing, or is directed to do so by the Board, the directly affected party must file the documentary evidence and serve a copy of it on the other directly affected parties before the hearing takes place.
(2)  The documentary evidence must be accompanied with a statement setting out the qualifications of the person who prepared the documentary evidence or under whose direction or control the evidence was prepared.
(3)  If a directly affected party is not able to file all of its documentary evidence before the hearing takes place, the directly affected party must
                               (a)    file the documentary evidence that is available at that time, and
                              (b)    file a statement
                                        (i)    identifying the balance of the documentary evidence to be filed, and
                                      (ii)    stating when the balance of the documentary evidence will be filed.
(4)  If a directly affected party is not willing to file documentary evidence when directed to do so by the Board under subsection (1), the directly affected party must file a statement setting out the reasons why the directly affected is not willing to do so.
Acquisition of an Approval, Registration, Authorization
New owner
37   When a person buys, receives assignment of or otherwise acquires an approval, registration or authorization, the person must provide the Board with the following:
                               (a)    the legal description of the land that is the subject of the approval, registration or authorization;
                              (b)    the approval, registration or authorization number, if any;
                               (c)    the person’s address and phone number;
                              (d)    if more than one person buys, receives assignment or otherwise acquires the approval, registration or authorization, details of the ownership relationship respecting the approval, registration or authorization;
                               (e)    the type of confined feed operation and the species of livestock kept or type of manure storage facility.
Inspectors
Identification of inspectors
38   The Board must provide an inspector designated under section 11 of the Act an identification card that states an expiry date, bears the photograph and name of the inspector and has the signature of the chair of the Board.
Expiry, Coming into Force
Expiry
39   For the purpose of ensuring that this Regulation is reviewed for ongoing relevancy and necessity, with the option that it may be repassed in its present or an amended form following a review, this Regulation expires on June 30, 2017.
AR 268/2001 s39;88/2004;32/2014
Coming into force
40   This Regulation comes into force on January 1, 2002.