The Next Government needs to address Alberta’s Fossil Fuel Liabilities Part 2

The Subsequent Authorities wants to deal with Alberta’s Fossil Gasoline Liabilities

Half 2: Oil Sands Fluid Tailings Administration

Half 1 of this weblog (see right here) seemed on the finish of life environmental liabilities related to fossil gas actions in Alberta.  However there are ongoing operational issues – as highlighted by the latest unplanned releases of fluid tailings from the Imperial Oil Kearl Oil Sands Facility – that increase potential security and well being dangers and environmental impacts of fossil gas operations.  These unplanned releases significantly spotlight the dearth of transparency and poor communication on behalf of the Alberta Power Regulator (AER).

The AER is presently answerable for regulating all features of the oil and fuel {industry} together with having authority to concern approvals beneath the Environmental Safety and Enhancement Act and the Water Act.  Enforcement and compliance actions additionally fall inside the AER’s mandate.  Whereas this will likely enhance effectivity from the attitude of the oil and fuel {industry} contributors, it additionally ends in a scarcity of transparency and impartial regulatory oversight of the {industry}. It’s time to take into account different regulatory constructions to make sure environmental safety and adherence to the air pollution pays precept – fairly than {industry} effectivity – information oil and fuel regulation in Alberta.

The Polluter Pays Precept and the Legacy of Fossil Fuels in Alberta

As has been acknowledged by the Supreme Courtroom of Canada, the polluter pays precept “has change into firmly entrenched in environmental regulation in Canada… [and] additionally acknowledged on the worldwide degree”.[1]  The SCC describes the polluter pays precept as:

To encourage sustainable improvement, that precept assigned polluters the duty for remedying contamination for which they’re accountable and imposes on them the direct and instant prices of air pollution.  On the identical time, polluters are requested to pay extra consideration to the necessity to defend ecosystems in the midst of their financial actions.[2]

In easy phrases, the polluter pays rules signifies that {industry} ought to clear up the mess it makes.  Implementation of this precept, nevertheless, will not be so easy (see our publication The Polluter Pays Precept in Alberta Regulation, An Introduction & Survey for extra dialogue).[3]

Trying on the legacy of fossil fuels in Alberta, it’s obvious that the polluter pays precept has been poorly applied with respect to fossil gas extraction within the province.  There are over 6,000 orphan websites in Alberta – that means there isn’t any legally accountable or financially ready particular person to conduct essential abandonment and reclamation.[4] A public assertion by the Alberta Power Regulator (AER) in 2018 estimated oil and fuel liabilities at $58.65 billion[5] (though the AER’s inner estimates have been as excessive at $260 billion[6]). Different estimates place the price of Alberta’s properly legal responsibility at $100 billion.[7]  Putting these liabilities on the general public purse – versus those that created the liabilities – diverts public funding that could possibly be utilized in assist of the provincial academic or well being care methods.

This a part of the weblog seems to be at oil sands fluid tailings administration in Alberta.  The latest releases of fluid tailings from the Imperial Oil Kearl Oil Sands Facility spotlight the potential security and well being dangers and environmental impacts of fossil gas operations inside Alberta.

Finish-of-Life Liabilities are Not the Solely Downside: Oil Sands Fluid Tailings Administration

Oil sands operations – like different oil and fuel operations – are topic to normal environmental laws such because the provincial Environmental Safety and Enhancement Act and the Water Act, and the federal Fisheries Act.  These items of laws function to ban the discharge of drugs into the atmosphere, to ban land-based actions that have an effect on water, and to ban deposition of drugs that influence fish habitat (besides in accordance with statutory authorizations which may be granted).

There are additionally particular necessities for the administration of oil sands fluid tailings.  The Tailings Administration Framework (TMF)[8] is supposed to offer “route to handle fluid tailings volumes throughout and after mine operation in an effort to handle and reduce legal responsibility and environmental threat ensuing from the buildup of fluid tailings on the panorama”.[9]  The TMF is run via the Oil Sands Conservation Act and the Environmental Safety and Enhancement Act, and fills a spot by offering a framework to monitoring and administration of fluid tailings accumulation.  It’s complemented by the Floor Water Amount Administration Framework for the Decrease Athabasca River and the Water Conservation Coverage for Upstream Oil and Fuel Operations.

The TMF outlines a number of coverage outcomes, one being minimization of legal responsibility to Albertans by establishing a “accountable stability between defending the folks of Alberta from the environmental and financial prices related to the legal responsibility of the buildup of fluid trainings throughout oil sands mining”.[10] A second coverage final result is administration of environmental results to reduce them for present and future generations which incorporates progressive reclamation of fluid tailings over the lifetime of mining initiatives and the consideration of finish panorama aims throughout planning and operation phases. Total the TMF may be very centered on managing the quantity of gathered fluid tailings:[11]

Fluid tailings accumulation is minimized by guaranteeing that fluid tailings are handled and reclaimed progressively in the course of the lifetime of a venture and all fluid tailings related to a venture are ready-to-reclaim inside 10 years of the top of mine lifetime of that venture.  The target will likely be achieved whereas balancing environmental, social, and financial wants.

The TMF necessities are to be included into new venture approvals, amendments and renewals. It must be famous that oil sands approvals have relied closely on the idea of “adaptive administration” that means that identified environmental issues will likely be addressed via unknown future know-how.[12]  At this cut-off date, fluid tailings are being managed utilizing pit lakes wherein solids (sand, clay and residual bitumen) settle out from water.  Though some water is recycled again into oil sands extraction processes,[13] there are plans underway to launch the tailings water into the Athabasca River.[14]

As properly, the TMF necessities are mirrored within the AER’s Directive 085.[15]  As an example, oil sands mining venture purposes require a fluid tailings quantity profile and a administration plan.  If the profile and plan are accepted by the AER, then thresholds are set to attain an end-of-mine fluid tailings quantity (thresholds include a profile deviation set off, a complete quantity set off and complete quantity restrict).

There may be additionally a Mine Monetary Safety Program which collects safety deposits primarily based on the estimated liabilities of a mine.[16]  This program is supposed to guard Albertans from the prices related to oil sands mines incapacity. There have been criticisms of this program for its failure to gather ample quantities of safety, in addition to, a scarcity of transparency.[17]  As an example, in 2015 the Auditor Basic of Alberta (AGA) discovered that there was vital threat that asset values are being overstated leading to inadequate safety quantity being collected.[18] In 2021, the AGA reviewed the implementation of its 2015 suggestions and located there was unsatisfactory progress in altering the calculation of safety.[19]

A Failure in Administration: Imperial Oil’s Kearl Oil Sands Fluid Tailings Releases

Whereas investigations are nonetheless underway, there have been releases of fluid tailings water at Imperial Oil’s Kearl Oil Sands Facility.[20]  These releases have triggered responses by each the provincial and federal governments.  Provided that these are substance releases there could also be penalties beneath the provincial Environmental Safety and Enhancement Act. As properly, potential impacts on water might set off penalties beneath the provincial Water Act or the federal Fisheries Act. Nevertheless, it must be famous that there could also be evidentiary difficulties in demonstrating a causal hyperlink between the releases and signifiant antagonistic environmental results or hurt to fish (particularly the place surrounding water our bodies dilute the releases).

Particulars of releases might be discovered within the Environmental Safety Order (EPO) which was issued by the AER on February 6, 2023.[21]  The EPO outlines that two releases occurred, one on Might 19, 2022 and the opposite on February 4, 2023.  The sooner launch was decided to be seepage from a tailings space.  The second launch was on account of overflow of an industrial wastewater storage pond.  Imperial Oil maintains there isn’t any influence to wildlife or native consuming water sources, and that the substances didn’t enter any rivers.[22]

There was no public notification – together with to the encompassing Indigenous communities – of the discharge that occurred in Might 2022 till issuance of the EPO virtually 9 months later.  Nor was notification offered to the Governments of Canada or the Northwest Territories.

On March 13, 2023, Setting and Local weather Change Canada issued a press release that it believed the discharge to be deleterious or dangerous to fish and accordingly issued a route beneath the federal Fisheries Act requiring Imperial Oil to include the seepage and stop its entry into fish-bearing waters.[23] On Might 4, 2023, a proper investigation for a suspected contravention of part 36(3) of the Fisheries Act was opened by Setting and Local weather Change Canada.[24]

Whereas not a launch of fluid tailings, there was a launch of water from a sedimentation pond on the Suncor Fort Hills web site on April 16, 2023.[25]  This launch of water had Complete Suspended Solids that exceeded its approval ranges.

Clearly, fluid tailings releases are regarding with severe potential for impacts on human well being and security, and on the atmosphere.  It additionally regarding that information of a leak was not shared by the regulator till 9 months after its preliminary prevalence.  It is a lack of transparency and communication that exacerbates the potential hurt from the leak itself.

Alberta’s Authorities can and will implement a greater system

At present, the AER is answerable for regulating all features of the oil and fuel {industry} together with authority to concern approvals beneath the Environmental Safety and Enhancement Act and the Water Act.  Enforcement and compliance actions additionally fall inside the AER’s mandate.  Whereas this will likely enhance effectivity from the attitude of the oil and fuel {industry} contributors, it additionally ends in a scarcity of transparency and impartial regulatory oversight of the {industry}.  Certainly, lack of transparency has usually been raised as a difficulty for varied features of oil and fuel legal responsibility: together with the calculation of safety deposits, the dedication of closure spend quotas, the estimations of legal responsibility, and the containment and therapy of fluid tailings.  With out excessive ranges of transparency, there’s a threat of regulatory seize which leads to regulation and decision-making that’s primarily pushed by  {industry}’s pursuits versus public curiosity.

Though the broad framework for regulation of fossil gas {industry} is ready by laws, a lot of the detailed day-to-day operational issues are ruled by guidelines created the AER.  The AER is answerable for decision-making on statutory approvals.  It is usually answerable for guaranteeing compliance on all features of the fossil gas {industry} together with environmental, habitat and water impacts.  Enforcement selections – in addition to communications round these selections – fall inside the AER’s discretion.  In different phrases, a substantial amount of authority is centred within the AER – a regulatory physique with no elected officers – which has usually centered on enhancing regulatory effectivity from the attitude of {industry} (e.g. one-stop automated decision-making).  With out elected officers, there’s restricted accountability for the AER’s (in)actions. Traditionally, there have been solely very restricted makes an attempt to contain the general public within the AER’s rule-making processes.  It’s time to take into account different regulatory constructions to make sure environmental safety and adherence to the air pollution pays precept – fairly than {industry} effectivity – information oil and fuel regulation in Alberta.

[1] Imperial Oil Ltd. v Quebec (Minister of the Setting), [2002] 2 SCR 624 at para. 23.

[2] Ibid. at para. 24.

[3] Environmental Regulation Centre (Alberta), The Polluter Pays Precept in Alberta Regulation, An Introduction & Survey (Edmonton: 2019, Environmental Regulation Centre).

[4] See listing of orphan websites on the Orphan Nicely Affiliation web site, on-line: https://www.orphanwell.ca/about/orphan-inventory/.

[5] Alberta Power Regulator, “Public Assertion” (November 1, 2018), on-line: https://static.aer.ca/prd/paperwork/news-releases/AERPS2018-05.pdf.

[6] Carolyn Jarvis et al., “Alberta regulator apologizes for spooking public with $260-billion cleanup price estimate” (November 2, 2018) International Information, on-line: https://globalnews.ca/information/4621955/alberta-regulator-apologizes-for-spooking-public-with-260-billion-cleanup-cost-estimate/ [Jarvis et al.].

[7] Sharon J. Riley, “Investigation: The story of Alberta’s $100-billion properly legal responsibility drawback. How did we get right here?” (November 2, 2018) The Narwhal, on-line: https://thenarwhal.ca/the-story-of-albertas-100-billion-well-liability-problem-how-did-we-get-here/.  See additionally the Alberta Liabilities Disclosure Undertaking web site, on-line: https://www.aldpcoalition.com.

[8] Decrease Athabasca Area: Tailings Administration Framework for the Mineable Athabasca Oil Sands (Edmonton: 2015, Alberta Authorities) [TMR].

[9] Ibid. at 1.

[10] Ibid. at 8.

[11] Ibid. at 8.

[12] See Nathalie J. Chalifour, “Case Remark: A (Pre)Cautionary Story concerning the Kearl Oil Sands Determination, The Significance of Pembina Institute for Applicable Improvement et al. v Canada (Legal professional-Basic) for the Way forward for Environmental Evaluation” (2009) 5(2) McGill L.J. 251.

[13] Canadian Affiliation of Petroleum Producers web site, on-line: https://www.capp.ca/discover/tailings-ponds/.

[14] Bob Weber, “Draining tailings into Athabasca resolution beneath evaluation in oilpatch, says Guilbeault” (August 18, 2022) CBC web site, on-line: https://www.cbc.ca/information/canada/edmonton/oilsands-tailings-guilbeault-athabasca-alberta-1.6554755.

[15] Alberta Power Regulator, Directive 085: Fluid Tailings Administration for Oil Sands Mining Initiatives (Might 19, 2022).

[16] Alberta Power Regulator web site: https://www.aer.ca/regulating-development/project-closure/liability-management-programs-and-processes/mine-financial-security-program.

[17] See for instance, Drew Yewchuk, “One other 12 months Gone beneath the Mine Monetary Safety Program” (October 19, 2021), ABlawg, on-line: https://ablawg.ca/2021/10/19/another-year-gone-under-the-mine-financial-security-program/.

[18] Auditor Basic of Alberta, Report of the Auditor Basic of Alberta, July 2015  (Edmonton: 2015, Workplace of the Auditor Basic of Alberta).

[19] Auditor Basic of Alberta, Report of the Auditor Basic of Alberta, June 2021 (Edmonton: 2021, Workplace of the Auditor Basic of Alberta).

[20] Alberta Power Regulator web site, on-line:  https://www.aer.ca/protecting-what-matters/holding-industry-accountable/investigations/ongoing-investigations/imperial-oil-kearl-oil-sands.

[21] Alberta Power Regulator web site, on-line: https://www1.aer.ca/compliancedashboard/enforcement/202302-02_Imperialpercent20Oilpercent20Resourcespercent20Limited_Kearl_Order.pdf.

[22] Imperial Opening Assertion to Standing Committee on Setting dated April 20, 2023, on-line: https://www.imperialoil.ca/-/media/imperial/information/operations/kearl/imperial-opening-statement-april-20-2023.pdf?la=en-ca&hash=06AEBBD146F89D7574DC66C66E93B041E9AF8CFC.

[23] Bob Weber, “Imperial Oil faces federal order to cease seepage as tailings leak deemed dangerous to wildlife” (March 14, 2023) CBC web site, on-line: https://www.cbc.ca/information/canada/edmonton/kearl-imperial-oilsands-leak-1.6778165.

[24] Authorities of Canada web site, on-line: https://www.canada.ca/en/environment-climate-change/information/2023/05/environment-and-climate-change-canada-enforcement-opens-a-formal-investigation-into-imperial-oil-ltds-kearl-oil-sands-site.html.

[25] Alberta Power Regulator web site, on-line: https://www.aer.ca/providing-information/news-and-resources/news-and-announcements/bulletins/announcement-april-18-2023.

Picture credit score Julia Kilpatrick, Pembina Institute/flickr