The U.S. and Mexico appear to have joined Canada in its fight to prevent a North American Free Trade Agreement (NAFTA) investigation of the more than 176 square kilometres of tailings ponds holding waste from the Alberta oilsands near Fort McMurray.

In 2010 a group of citizens and environmental groups petitioned NAFTA’s Commission on Environmental Cooperation to investigate whether Canada is breaking its own federal laws, in particular the Fisheries Act, by failing to adequately manage the massive tailings ponds which hold a toxic mixture of water, silt and chemicals.

“It was important for us to know whether this was happening and whether environmental laws were being broken and whether the government is upholding those laws or ignoring them,” Dale Marshall from Environmental Defence, one of the organizations behind the compliant, said.

A 2012 federal study confirmed the tailings ponds are seeping waste into the local environment and Athabasca River. In 2013 an internal memo prepared for then Natural Resources Minister Joe Oliver confirmed groundwater toxins related to bitumen extraction and processing are migrating from the tailings ponds.

“The studies have, for the first time, detected potentially harmful, mining-related organic acid contaminants in groundwater outside a long-established out-of-pit tailings pond,” the memo reads. “This finding is consistent with publicly available technical reports of seepage (both projected in theory, and detected in practice).”

A separate Environment Canada study released in late 2014 confirmed tailings ponds emit toxins into the atmosphere at rates nearly five times higher than previously reported.

The NAFTA environmental commission was established in 1994 to investigate public concerns and resolve environmental disputes related to international trade in Canada, the U.S. and Mexico.

A decision on whether or not to investigate complaints is made by a council comprised of environmental ministers from the three countries. A vote on whether or not to recommend a ‘factual record’ or in-depth investigation is expected to come down within the next week.

Yet in an email to the CBC Environment Canada spokesman Danny Kingsberry said “through a council resolution in December 2014, Canada, Mexico and the U.S. unanimously voted to terminate the submission.”

The statement raised concerns that Canada has already guaranteed success in its protracted fight against the investigation even though the official vote has yet to take place. U.S. and Canadians officials described the statement as “highly unusual” although Canada’s effort to shut down the investigation has been explicit throughout the process.

Previously Dan McDougall, the assistant deputy minister for Environment Canada’s international affairs branch, instructed the commission to “proceed no further with this submission.” McDougall argued a related pending court case ruled out the need for an investigation. When the commission pushed back, McDougall instructed the body to “cease this analysis.”

According to Hugh Benevides, legal officer for the commission, Canada’s efforts to thwart the investigation are unprecedented.

“To my knowledge we have never received such a firm position as we have from Canada as we have in this case,” he told the CBC. “I think it’s safe to say it’s a new approach.”

Canada has blocked previous NAFTA investigations, however, aided in part by Mexico’s vote. In 2014 Canada prevented two investigations, one into B.C. salmon farms and the other into the protection of polar bears.

According to Benevides the council has successfully stopped four investigations in the last 20 years. If Canada prevents an investigation of the oilsands it would bring the total to five, the majority of which will be led by Canada within the last three years.

Debra Steger, international trade law expert at the University of Ottawa, told the CBC that countries are eager to avoid this kind of oversight.

“[A NAFTA investigation] produces a report that can be critical of what the government is doing and no government wants that scrutiny,” she said

Steger added this is especially the case with such politically contentious issues as the Alberta oilsands.

“This is an issue that the three parties probably just don’t want to go too near at this point,” she said.

For Environmental Defence’s Marshall the blocked investigation has everything to do with the pending Keystone XL pipeline decision south of the border.

“It’s clear that President Obama is looking at Canada’s record when he is thinking about approving or not approving certain pipelines going through the U.S.,” he said. “If this is one more stain on Canada’s record then that plays into his decision potentially.”

A vote on the tailings pond investigation is expected as soon as Friday.

Image Credit: Tailings pond at Suncor mining site by Alex MacLean.

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The Alberta Energy Regulator (AER) has released new figures tallying the total volume of bitumen emulsion recovered at the Canadian Natural Resources Ltd. (CNRL) Primrose site in Cold Lake, Alta. The new total — 1,177 cubic metres or 1.1 million litres — is more than a third lower than previously reported amounts.

An earlier incident report from November 14, 2013, states more than 1,878 cubic metres of emulsion was recovered at the four separate release sites, where the mixture of bitumen and water had been leaking uncontrollably into the surrounding environment for several months without explanation. That's enough liquid to fill an Olympic-sized swimming pool three-quarters of the way full.

CNRL's July 31, 2013, statement (pdf), released to investors just over one month after the leaks were reported to the AER, said that within the first month of cleanup, 1,000 cubic metres of bitumen emulsion had been collected.

Scientist Kevin Timoney, who's authored several reports on the CNRL leaks, said the reported figures just don't add up.

“The bottom line is, how do you go from essentially 1,900 cubic metres, which is what you get if you listen to the president of CNRL when he was talking in January, down to 1,177 cubic metres. How does that happen?" Timoney said. "And nobody has answered that."

Bob Curran, spokesperson for the AER, told DeSmog Canada the provincial regulator has no ownership of the volume amounts they report to the public and publishes figures given to them by CNRL without verification.

“Those numbers on that site are estimates. They are provided by the company. They are not confirmed AER numbers, nor have they ever been,” he said. “So if the company changes the estimate then we would change a number on the site, until such a time that we arrive at a final number. We haven’t done that in this case so those numbers continue to be estimates supplied by the company.”

Timoney said the U.S. regulator, the Environmental Protection Agency, would never rely on industry for that type of data. "They’d be out there gathering data and determining how much had been spilled and how much had been cleaned up," he said.

When pressed on the disparity between current reported figures and previously reported figures, CNRL spokesperson Zoe Addington said the difference was a matter of “reconciliation.”

CNRL has removed oil, processed water, fresh water, vegetation and soil from the site. Addington was unable to clarify if the decrease in recovered bitumen emulsion volumes was due to an increase in reports of removal of other materials, such as fresh water and vegetation.

A CNRL report states, “Numbers have changed since the last reporting period based on a reconciliation of volumes with the receiving facility.”

Timoney, an ecologist with Treeline Ecological Services who just released a new report this month called CNRL’s Persistent 2013-2014 Bitumen Releases near Cold Lake, Alberta: Facts, Unanswered Questions, and Implications (pdf), said he'd like to see the data.

"Reconciliation is a nice word, but show me the numbers," he said. "I’m a scientist so I really want to see how this comes about."

He said even the AER and CNRL's own figures at times don't match. In mid-January AER published the 1,177 cubic metre volume while CNRL was still posting 1,864 cubic metres.

"Since I can’t get on site and they won’t give me the raw data, I just really have to report what they say and point out when it doesn’t agree," Timoney said.

Canadian Natural Resources Ltd. images show the continued seepage of bitumen to the surface at location 9-21, the site of a water body now partially drained.

As a scientist, Timoney finds the lack of transparency dangerous, especially to the regulatory process. 

"This is one of the problems with the whole regulatory system, because … AER just simply reports, apparently reports, what industry tells them. They don’t do any checking."

Reproducing industry figures in the name of public disclosure isn't much of a solution, he said. 

"I think the regulator has a responsibility to provide an accurate assessment of the company’s activities. So if the regulator is not verifying information, it’s just simply acting as a clearing house for information industry gives it, it’s not doing its job. It’s not acceptable."

He added: "It’s a problem that’s only gotten worse over the years, in the sense that now AER is basically a non-governmental entity. It’s funded by industry. It’s not an agent of the crown so we don’t have the same sort of access to information we would if they were a government agency. So the AER can basically do whatever it wants to do and the public doesn’t have any recourse. It’s unbelievable, really, when you think about it."

CNRL says cleanup is now complete at three of the terrestrial seepage sites. The final site, 9-21, located beneath a body of water that has since been partially drained, continues to seep bitumen.

According to Addington: “Seepage from the fissures has slowed to an almost imperceptible rate.” CNRL currently reports the rate of seepage for all sites at less than one cubic metre (1,000 litres) per month.

All images courtesy of CNRL.

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New figures released yesterday from the Alberta Energy Regulator (AER) show a concerted effort is still underway to clean up the growing amount of bitumen emulsion – a mixture of tar sands oil and water – that is pooling in a forested area surrounding Canada Natural Resource Ltd.’s Cold Lake project.

The cause of the seepage, which shows no sign of subsiding, has yet to be determined.

AER’s updated volumes show that the total amount of bitumen emulsion recovered on four separate spill sites amounts to 1444.4 cubic metres, a volume equivalent to 1.4 million litres of oil.

In addition, cleanup crews have removed 494 cubic metres of oily vegetation from the forested landscape and an additional 1049.62 metric tonnes – equivalent to 2.3 million pounds – of “impacted soils.”

The AER’s previous figures, released August 29th, stated 1275.7 cubic metres of bitumen emulsion had been recovered to date, the equivalent of 1.2 million litres.

Between the dates of August 29th and September 6th roughly 168,800 litres of bitumen emulsion were recovered, equaling around 1062 barrels of oil equivalent, or an average of 150 barrels per day.

CNRL, the company responsible for the in-situ operations that led to the seepage, put out a release dated August 25-31 that claims the rate of bitumen emulsion release amounts to less than 20 barrels of bitumen emulsion per day.

The disparity between CNRL’s figures – a release of 20 barrels per day – and the AER recovery figures – of 150 barrels per day – is due to unrecovered bitumen emulsion on site, according to CNRL public affairs advisor Zoe Addington. CNRL is cleaning up more per day than is currently leaking, she said.

Original CNRL images released to reporter Emma Pullman show oil pooled high in a forested area, presenting both the company and provincial regulators with an extraordinarily difficult cleanup.

The CNRL statement also claims the company is “focusing on a reduced impact area of 13.5 hectares, a 35% reduction” since original reporting.

The AER report states 20.7 hectares have been impacted from the ongoing release.

CNRL is still working to recover bitumen, remove soil, manage contaminated water and expose fissures where bitumen emulsion is migrating to the surface on three of the leakage sites, says the AER. The company is also recovering bitumen, agitating and skimming oil from the surface of a water body and removing vegetation from the fourth site.

The AER also reports that to date 2 beavers, 43 birds, 104 amphibians and 40 small mammals are deceased as a result of the release.

CNRL’s latest statement reads, “unfortunately some animal fatalities have occurred and three beavers, seventeen birds and two small mammals are being cared for at a Wildlife Rehabilitation Centre…”

As part of an ongoing subsurface investigation CNRL is drilling hydrogeological and delineation wells around the affected locations and has cited “mechanical failures” as the presumed cause of the continuous leaks, although the AER recently told DeSmog Canada the cause remains unknown.

CNRL was responsible for a similar release in 2009 that was likely caused by underground fractures, according to a report by the Energy Resources Conservation Board, the former AER.

According to Cara Tobin, spokesperson for the AER, the current spill “is in the same operational area” as the 2009 release. “These are releases coming up from basically cracks in the ground, not from the well pad,” she said. Although, she adds, it is too early to say what might be the cause of this particular series of underground leaks.

“We do not have the technical data or evidence to verify what that cause might be…We will determine that through our investigation process,” she said.

Last week Environment Canada announced a federal investigation into the seepage is underway alongside two separate investigations at the provincial level.

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