Aug. 31, 2010 - Issue #776: The Gaslight Anthem
Failure to enforce
New tailings ponds rules not being enforced
Ed Stelmach used Earth Day, April 22, to send a tough-talking message to the oil industry. He announced that he intended to see the elimination of tailings ponds. Calling them a blight on Alberta's international image, the Premier may have been trying to atone for the minor media controversy he had triggered the previous month during the Syncrude trial. When photographs of the hundreds of dead ducks in tailings ponds were introduced as evidence, Stelmach claimed to have never seen the images, which had been transmitted widely around the world. To the surprise of no one Greenpeace obligingly showed up at the Legislature the next day with large prints of the images for the Premier. The Earth Day announcement seemed intended to draw attention away from that negative publicity.
Questions about Alberta's record on environmental protection didn't subside throughout the summer, however, so last month, the provincial government embarked upon a $268 000 ad campaign aimed at silencing critics. Aimed within Alberta markets, the promotion defends the Conservatives' record on environmental protection. "We supervise and strictly limit water use, monitor air quality 24/7 and require by law that any land used for tailings ponds be returned to a productive state," says a reassuring voice in the radio ads.
What the ads don't mention is that the government, and its agencies, wilfully ignore its own laws, a practice environmental groups intend to put a stop to.
They point to the fact that the very day after Stelmach used Earth Day to declare that his government would force an end to oil sands tailings ponds, the ERCB approved Syncrude's tailings management plans for the Mildred Lake and Aurora North tarsands projects despite the fact the plans clearly state they will not meet the ERCB's own regulatory requirements.
"The provincial government talks about having strict new laws to reduce tailings, but then it exempts operators from meeting those laws, rendering them toothless," says Simon Dyer, oil sands program director for the Pembina Institute.
Last month, Environment Canada released data that showed the amount of toxic chemicals such as arsenic and lead being stored in tailings ponds increased 26 per cent in the past four years. The information, collected from 85 mining companies, was released only after a court challenge by Ecojustice (formerly known as the Sierra Legal Defense Fund) forced the government department to make public what is being stored on-site at mining operations.
Just as environmental groups and researchers were receiving that information, the ERCB approved approved Imperial Oil's tailings management plan for the Kearl tarsands project, which also fails to meet regulatory requirements.
"Ed Stelmach is spending millions trying to convince the world Alberta is serious about environmental sustainability at the same time his government is approving substandard oilsands projects," NDP leader Brian Mason said in a release.
Last week, the Pembina Institute and Water Matters, an organization focused on water policy research in Alberta, joined with Ecojustice to challenge whether the ERCB has the authority to override its own regulation. The group filed an application with the ERCB requesting the approval of Syncrude's non-compliant tailings management plans be withdrawn until the plans are brought in line with the ERCB's tailings management directive.
"The ERCB directive requires the tarsands operators to divert at least 50 percent of a component of their tailings, known as fine tailings, by June 30, 2013," said Barry Robinson, Ecojustice staff lawyer. The Syncrude plans approved by the ERCB would achieve less than 15 percent diversion. Robinson says the ERCB does not have the legal authority to approve plans that are not in compliance with their own directive. Ecojustice will use all available legal tools to ensure that the ERCB operates within the law, he added.
The ERCB defended its decision on Syncrude's Mildred Lake and Aurora North plans, with spokesman Davis Sheremata saying to media that the company did the best they could. "We got a tailings plan at the end of the day that we felt did everything that Syncrude could possibly do that was technologically feasible to bring their processes into compliance with the directive," he said.
The Ecojustice application will be reviewed by legal staff to see if it meets technical requirements to be considered. In the meantime, the Syncrude decision will stand, which has environmentalists concerned.
Joe Obad, associate director of Water Matters says, "Tailings ponds continue to threaten water quality in Alberta, but the ERCB is treating the regulations as a starting point for negotiation, rather than as clear rules with which the companies must comply."
The ERCB has yet to announce whether they will accept Ecojustice's request for a review. V
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