Pembina Institute

Tailings regulations all bark, no bite

Published Dec. 9, 2010.

CALGARY, AB — The Energy Resources Conservation Board has declared it has the power to exempt oilsands operators from meeting its regulatory standards, a move environmental groups say is indicative of the board’s toothless tailings pond management.

The ERCB’s declaration came in response to a review application submitted in August by Ecojustice, on behalf of the Pembina Institute and Water Matters.

The application asked the ERCB to review and rescind approval of tailings management plans for Syncrude’s Mildred Lake and Aurora North oilsands projects. The plans submitted by Syncrude do not comply with the requirements of the ERCB’s Directive 074: Tailings Performance Criteria and Requirements for Oilsands Mining Schemes.

In a decision issued December 1, the ERCB stated it has the power to “exempt from its own regulatory requirements” and that it would not review the Syncrude approvals. The ERCB went on to say that “imposition of the tailings management requirements may have significant impacts to existing and prospective oilsands mining operations.”

At the time that Directive 074 was developed, the ERCB said that the oilsands industry had been extensively consulted and that there was nothing in the Directive that the industry would be unable to comply with. The ERCB now says that the industry needs more time to test and implement new technologies in order to comply with the Directive.

“While Directive 074 was intended to address growing concern over the volume of tailings being produced, the board’s stance indicates it is more concerned with industry profits than the environment,” said Joe Obad, Water Matters associate director.

“The ERCB puts more importance on the regulations’ financial impact on the oilsands companies than on the environment Directive 074 is meant to protect,” Obad added.

To date, only two of nine tailing plans submitted to the ERCB comply with the Directive.

“The Government of Alberta is telling the world that it has tough new tailings regulations, but the reality is that the ERCB has expressly decided not to consistently enforce those regulations,” said Jennifer Grant, oilsands program director at Pembina Institute.

“There is no accountability to Albertans who expect the ERCB to uphold the public interest and enforce its regulations.”

“This decision sets a very bad legal precedent,” said Barry Robinson, Ecojustice staff lawyer.

“In effect, the ERCB is saying, ‘We can make the rules,’ and then, ‘We can decide who to exempt from the rules.’ A fundamental principle of law is that the law applies equally to everyone, and administrative decision-makers cannot decide who to exempt from the law,” he said.

“There is little point in having tailings management regulations if they are not going to be acted upon and enforced.”

The environmental groups are now considering whether to appeal the ERCB decision and other possible steps to ensure that the tailings regulations are enforced. 

An executive summary of Tailings Plan Review: An Assessment of Oilsands Company Submissions for Compliance with ERCB Directive 074, which provides further background to this issue, may be found at:
http://www.water-matters.org/docs/tailings-plan-review.pdf

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Contact:

Barry Robinson — Staff Lawyer
Ecojustice
Phone: 403-705-0202

Jennifer Grant — Oilsands Program Director
Pembina Institute
Phone: 403-538-7781

Joe Obad — Associate Director
Water Matters
Phone: 403-585-5826

Background: Government of Alberta/ERCB Quotes

The Government of Alberta/ERCB previous position:

“We have also taken major steps to improve tailings pond management in the oilsands… Companies in Alberta will have to reduce tailings by 50 per cent by 2013.”

Hon. Ron Stevens, Minister of International and Intergovernmental Relations Speech to Canada-Mexico Partnership VIP Energy Panel: Mission to Mexico March 23, 2009 

"It means we're going to have to force — when I say force, we're going to get more aggressive — and work with companies presently in open pit mining to move to either dry tailings or develop that resource without wet tailings ponds."

Premier Ed Stelmach Edmonton Journal, April 23, 2010 

“The directive was passed last February after pretty extensive consultation…We went over it to see if there were any deal-breakers, anything that the companies would be unable to comply with…So the final directive was something the companies would be able to comply with.”

Davis Sheremata, ERCB Spokesperson Canwest News Service, September 24, 2009

“…all projects will meet ERCB tailings standards if they want to operate in Alberta.”

Davis Sheremata, ERCB Spokesperson Canwest/Global, December 1, 2009

“Companies are expected to be compliant with the regulations as they stand now. And if they are not compliant they won’t be approved.”

Davis Sheremata, ERCB Spokesperson Globe & Mail, December 2, 2009

The ERCB position now:

“…the ERCB’s own enabling legislation and regulations and other instruments made under it permit the ERCB to exempt from its own regulatory requirements.”

Dan McFadyen, Chair, ERCB Letter to Ecojustice, December 1, 2010

"…imposition of the tailings management requirements may have significant impacts to existing and prospective oilsands operations…”

Dan McFadyen, Chair, ERCB Letter to Ecojustice, December 1, 2010

“These represent major investments of money, labor and time and we felt that Syncrude was doing everything that is technologically doable to be able to meet the directive as quickly as possible.”

Davis Sheremata, ERCB Spokesperson Reuters, August 24, 2010

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