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Alberta’s New Rules May be Insufficient for Dealing with Sprawling Oilsands Tailings Ponds

It’s been almost two months since the Alberta Energy Regulator (AER) released a new management framework to deal with the province’s growing legacy of oilsands tailings ponds that hold a toxic mixture of waste water, bitumen, solvents and sand.

But we’re really no closer to knowing if Directive 085 — quietly made effective on July 14 — will provide the necessary financial pressures for companies to start dealing with the almost one trillion litres of tailings that cover some 220 square kilometres of the province’s northeast.

Tweet: “We really feel like this could be strike three for #Alberta dealing with tailings” http://bit.ly/2ci6XvP #ableg #oilsands #cdnpoli“We really feel like this could be strike three for Alberta dealing with tailings,” says Chris Severson-Baker, managing director of the Pembina Institute.

The previous version, Directive 074, established prescriptive regulations for companies that were almost completely ignored. The new framework requires oilsands companies to submit project-specific applications that will be reviewed and approved or rejected by the regulator, a process which Severson-Baker suggests could lead to greater overall efficiency.

In addition, the inclusion of “indirect” stakeholders such as Pembina and Indigenous organizations in the process may add to the quality of requirements around transparency and reporting.

But given recent history on the tailings management front, there’s good reason to be skeptical.

Original Tailings Directive Lacked Enforcement, Penalties

Directive 074 was first introduced in February 2009 by the Alberta Energy Regulator (then titled the Energy Resources Conservation Board).

It was significant at the time given the complete lack of action by the provincial government up to that point: the previous approach had effectively been to grant approvals to open-pit mines and hope technology would be developed to deal with the waste.

The first long-term objective listed for Directive 074 was “to minimize and eventually eliminate long-term storage of fluid tailings in the reclamation landscape,” although the technology to do so did not — and still does not — exist.

Directive 074 included a very specific requirement, however, that by 2013, half of all oilsands waste must be captured and dried, a technique favoured in the mineral mining industry for long-term storage.

For the first time ever, there were specific rules and a timeline for tailings management.

In the long term, the hope was such regulations could promote investments in research and development, resulting in innovations that could eventually be applied industry-wide. Kyle Fawcett, the previous environment minister, consistently suggested the energy companies would come up with their own solutions to such problems.

That push for innovation “was seen as a positive,” Severson-Baker said. But when that new rule was implemented “companies just didn’t comply with it.”

“They submitted reports that explained why it was impossible for them to meet the requirements and so on. Eventually, the regulator — the Energy Resources Conservation Board — stopped keeping up with its regular reporting schedule.”

It was a familiar story of inept environmental regulation in Alberta that seemed to mirror the  failed attempted to establish an arm's length oilsands monitoring program.

The intent was there but the regulatory rigour was not.

Previous System Failed to Collect and Report Tailings Data

By 2013, none of the companies were complying with the rules established by Directive 074.

For instance, the rules mandated companies had to capture 30 per cent of fine particles in tailings for dry storage by 2012, and 50 per cent by 2013.

Suncor — the largest oilsands producer — only achieved a fine tailings capture rate of 8.5 per cent in 2011-12. Syncrude, which negotiated for a 12 per cent rate, only achieved an 8.8 per cent capture rate.

The Energy Resources Conservation Board set into a pattern of excusing major oilsands producers like Suncor, Syncrude and Shell for continually failing to meet regulatory requirements.

Data wasn’t being collected and reported. While the rules required companies to reduce tailings and establish plans for when the mines were either closed or abandoned, there were no financial repercussions for not doing so.

This allowed for tailings to continue to grow unchecked. In 2013, the Pembina Institute calculated that 1.5 barrels of tailings waste was produced for every one barrel of oil. There’s a chance that could change with the processing of the new plans.

But it might also miss the opportunity.

“I think something that could happen is when we see all the individual plans, it’s fairly likely if you take them all together it doesn’t match what was promised when the tailings management framework came out a couple of years ago in terms of peak and decline,” Severson-Baker says.

“That’s where it’s going to take some really tough leadership on the part of the regulator and the province to push back and say ‘look, this is not good enough, we’re running out of time to deal with these tailings.’ That’s something that’s yet to come.”

Limited Funds to Deal with Unchecked Tailings Growth

Unfortunately, there’s been a big gap in time between the announcement of the tailings framework in March 2015 and the actual implementation of the directive: while Directive 085 was announced in July, responses from oilsands companies aren’t due until early November and the finalized version of the plan won’t be released until spring 2017.

“During that time period, tailings have just continued to grow and the problem is getting more severe and we’re getting closer and closer everyday to the period that mines typically enter into — which is heading towards sunsetting,” Severson-Baker says.

“There isn’t as much future revenue expected and there’s less money as time goes on to actually pay for the cost of cleaning things up.”

There are countless examples of mining operations that don’t deal with their legacy issues. It’s an issue that’s become even more prescient with the spike in abandoned wells in Alberta since the downturn.

The delay also impacts the reporting process: Severson-Baker notes that it’s going to take years before we really know if the plans are working, meaning that results of the new directive may not be clearly understood for a while.

“We really can’t afford to have a delay in several years of not knowing only to find out that there’s a bigger problem here,” he says.

Tailings ‘A Challenge That This Government Is Facing’

All of these factors have led some organizations to actively campaign against oilsands expansion until tailings growth can be addressed.

In late 2014, Pembina suggested that new projects shouldn’t receive the green light until they can guarantee their plans for tailings recovery will work and deal with the dumping of wet tailings.

“It’s a key issue for some groups: until there’s a solution to those tailings ponds — a plan to actually deal with that waste — some organizations argue you shouldn’t add to the problem by approving further projects or allowing the industry an opportunity to increase production,” Severson-Baker says.

There are even bigger picture problems cropping up that may impact the plan: in February, a government report noted the Lower Athabasca Regional Plan — which encompasses oilsands operations and tailings ponds — represents a deeply flawed approach to Indigenous rights. In late August, University of Ottawa researchers published results of water quality testing indicating a significant spike in toxic chemicals in a lake near in-situ oilsands operations.

Severson-Baker emphasizes there’s a real sense of urgency on this issue as it’s one of the most visible impacts of oilsands operations.

A careful and consistently monitored tailings solution is what this government likely needs to address this issue, and look beyond to other concerns, including the revelation in late May that the oilsands area is one of the biggest emitters of “organic aerosol air pollution” in North America.

“We’re fighting the clock because so many legacy tailings have already been created,” Severson-Baker concludes. “That is definitely a challenge that this government is facing.”

Image: Alex MacLean

James Wilt is a freelance journalist based in Winnipeg, Manitoba. He holds a journalism degree from Mount Royal University in…

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