Tar-sands Tailings Ponds: Alberta Regulations Falling Short

Repost from NRDC – Jennifer Skene’s Blog
[Editor:  Don’t miss the excellent video below.  Also of note… the video refers to a powerful report on tar-sands mining by Ted Genoways in the December 2014 issue of Outside Magazine, “The High Cost of Oil.”  – RS]

Alberta’s Greatly Anticipated Tar Sands Tailings Ponds Framework Falls Short

Jennifer SkeneBy Jennifer Skene, March 13, 2015

A new Tailings Management Framework released by the Government Alberta unfortunately enables industry to sidestep taking meaningful action on one of the most pressing environmental issues of tar sands development. For years, Alberta’s political leaders have promised to finally address the harmful legacy of the toxic tar sands tailings problem. But this latest framework is not likely to compel industry action to clean up the tailings in a meaningful way, especially given its lack of meaningful enforcement mechanisms. This, in fact, makes the new framework a step in the wrong direction since the previous regulation, Directive 074, had concrete means of enforcement. Furthermore, Alberta’s history of unfulfilled promises to protect Canadian citizens and wildlife from the devastating effects of tailings ponds casts doubt on the framework’s true efficacy. This framework, without evidence of successful, speedy reclamation efforts, should not serve as a shroud obscuring the Canadian government’s inaction on tar sands and tailings ponds. It is further demonstration to U.S. officials that Alberta isn’t ready for serious action. The failure of the Alberta government to finally release a comprehensive, framework that stops the growth of tailings adds to the urgency to calls for a halt to an expansion of the tar sands industry.

The Problem of Tailings Ponds

Tailings ponds are a blight upon Alberta’s landscape that endanger both wildlife and Canadians. These ponds, which consist of the bitumen, napthenic acids, heavy metals, and other toxic substances left over from tar sands mining, kill and deform wildlife and poison downstream communities. There are currently 976 billion liters of tailings in the mineable region in Alberta–the equivalent of 390,000 Olympic-sized swimming pools–and this number is steadily growing. The dangers of the tailings ponds have been well illustrated. In addition to the recent tailings pond spills in Alberta and British Columbia, there is significant evidence that the ponds are leaking into groundwater, which could be placing wildlife and communities at risk (see video below).

This new tailings framework released by the provincial government is the latest effort to address the unrelenting growth of these tailings ponds and to hold tar sands companies accountable for taking steps to reclaim tailings. However, Alberta’s history and the framework itself provide plenty of reason to doubt that it will be effective.

Alberta’s History of Unfulfilled Promises

Canadian leaders have been heralding the creation of an effective tailings policy for years, but tailings volumes continue to grow. While Alberta has touted its environmental leadership, it has largely failed to protect its environment and citizens from the effects of tar sands tailings ponds. In 2010 Premier Ed Stelmach called for the elimination of tailings ponds, stating that the province would have to “get more aggressive” with mining companies to ensure that they reclaimed their waste. In April 2013, even as Alberta was failing to enforce existing tailings laws, Premier Allison Redford promised, “tailings ponds [will] disappear from Alberta’s landscape in the very near future.” This new framework’s timeline would not eliminate tailings in the “very near future,” nor would it constitute “get[ting] more aggressive” with the tar sands industry. In fact, if anything, it is a capitulation to the industry after they failed to carry out their obligations under Directive 074.

Tailings emptying into a pond in Alberta Photo by Rocky Kistner, NRDC

The previous tailings framework, Directive 074, was a failure, largely because it was not enforced. Directive 074, passed in 2009 by Alberta’s now-defunct Energy Resources Conservation Board (ERCB), required tar sands companies to reclaim a certain amount of tailings every year, beginning in 2010. By July 2012, companies were obligated to reduce 50% of its tailings every year thereafter, and tailings ponds had to be ready for reclamation within five years of the mine’s closure. The tar sands companies universally failed to meet the Directive’s requirements, and in 2013 the executive manager of the ERCB declared that Directive 074 was “overly optimistic” and that the ERCB would not take any actions to enforce it.

What’s In the New Framework

The new tailings framework – generally weaker than the previous Directive 74 – should not be construed as a solution to address the growing problem of tailings nor its enormous legacy on the northern Alberta landscape. Under the new framework, the Tailings Management Framework for the Mineable Athabasca Oil Sands:

  1. Companies are still able to generate large volumes of toxic tailings over the lifetime of a mine.
  2. Companies are given a lengthy window of time while they ramp up mining operations before they are required to start limiting tailings production.
  3. Because the Government of Alberta has not clarified what is means to “clean up” tailings, there may be a loophole for companies to dump the legacy tailings into end pit lakes.
  4. Companies have a significant amount of time to fully clean up tailings even after a mine closes.
  5. There are no provisions in the framework for enforcement.

The framework sets up tailings reclamation as a trapezoid (see figure below). Tar sands companies will be allowed to accumulate tailings to the extent that they would be able to be within range of an “End of Mine Life Target.” This target will vary based on the project. Companies are given a discretionary 3-10-year period during which they can accumulate tailings. After that time, they will be expected to maintain a constant tailings volume until the end of the mine’s life. Within ten years after the mine’s closure, the company will have to reclaim the entirety of the tailings.

tailings framework graph.jpg

One of the most immediate issues with the new framework is the discretionary period companies are given to accumulate tailings prior to having to engage in any reclamation efforts. It is unclear why the companies are being provided with this window, which will only lead to further accumulation. Furthermore, while the framework would reduce the total quantity of tailings on the landscape, the company is allowed to keep its tailings volume constant until the end of the mine’s life. Many mines last up to 50 years, meaning that full reclamation efforts, other than maintenance of a set amount of tailings, may not even begin for several decades and may not be completed until years after the mine closes. If the company goes out of business in that time, there may be no recourse to clean up the remaining tailings. Reclamation would also be further delayed because the framework provides projects with a ten-year window following the end of the mine’s life until the entirety of the tailings needs to be reclaimed.

Additionally, the framework allows companies a certain percentage deviation from their fixed accumulated tailings volume, referred to as a “Profile Deviation Trigger,” but this number is not specified. It will be up to the Alberta Energy Regulator (AER) to decide upon this percentage, along with each project’s tailings limits and end of life mine targets. However, the AER’s decisionmaking process is unclear, and it is uncertain whether stakeholders would be allowed to voice their concerns before the AER, leaving the basis for these quantities unknown.

Perhaps most significantly, given Alberta’s history with Directive 074, there is little provision in the framework for enforcement. If tar sands companies fail to abide by these more relaxed regulations, it is uncertain how they would be held accountable. The framework states that there will be a “compliance levy” if they deviate from their maximum permitted tailings, but the exact penalty and how it would be carried out, and whether it would be high enough to incentivize reclamation, are uncertain. Additionally, there is no mention of penalties related to tailings pond leakages into groundwater, leaving this crucial issue unregulated.

The framework also leaves vague what constitutes reclamation, stating only that “the land must be reclaimed to a resilient and functional boreal forest ecosystem.” This means the public is not given any guarantee as to whether toxic tailings will ever be cleaned up. The more established definition of reclamation is that it means returning the land to the thriving, vegetated region it was prior to the mine’s construction. Alberta regulators, however, have recently approved the use of end pit lakes as a mechanism for “reclamation.” These end pit lakes store tailings waste at the bottom, which is then capped or covered by fresh water. End pit lakes are largely terra incognita or, rather, lacus incognita.Their safety and effectiveness are unproven; it is uncertain how long, if ever, it will take for the freshwater layer to be free of toxins, or whether the tailings will seep into the surrounding land and water. Thus, even if the framework were effective and enforced, it may still be possible for companies to avoid more proven methods of reclamation.

Implications for the Future of Tailings

While Alberta regulators could certainly point to how the current framework improves upon Directive 074 in that it regulates both past and future tailings, the larger issues identified above loom large. Alberta’s historic lack of enforcement and the ambiguities in the law will give the tar sands industry an easy means of sidestepping any meaningful action on this major issue in the foreseeable future, making it difficult to imagine any scenario in which this framework achieves any substantial regulation of tailings ponds.