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
