Energy Resources Conservation Board approves first tailings plans despite failure to comply with Directive 074

In 2009, when the Alberta's Energy Resources Conservation Board (ERCB) delivered Directive 074: Tailings Performance Criteria and Requirements for Oil Sands Mining Schemes, it was hailed by industry and environmentalists alike as a positive step toward cleaning up the 170 km² (and growing) expanse of tailings lakes in northern Alberta.

Indeed, in Feburary 2009, ERCB spokesman Davis Sheremata explained in The Calgary Herald: 

Albertans will have certainty on how tailings ponds are going to be built, how they are going to be used and when and how they are going to be closed.

"This has teeth."
— ERCB on Directive 74The most important thing is these targets will be enforceable. So, by 2011, if companies are not meeting our requirements, we can take enforcement action against them. That means everything from increasing their inspections right through to shutting facilities to refusing to approve any upgrades or improvements. This has teeth.

Directive 074 is modest in its ambitions. After years of watching industry fail to meet targets for cleaning up tailings lakes, the directive requires operators to reduce toxic tailings by capturing or extracting the fine particles from the waste water and then storing the captured solids in disposal areas. The directive calls for an increasing capture rate of the fine particles in liquid tailings over the next several years. The capture rate is defined as a percentage of total fine particles in the raw oil sands material. Directive 074 calls for an increased capture of tailings over three milestone years: 20% by June 30, 2011, 30% by June 30, 2012, and 50% by June 30, 2013.

As clear as these targets are, most oil sands companies did not wait long to test the ERCB's resolve. In September 2009, industry plans for managing tailings in accordance with Directive 074 were due. Incredibly, only two of the nine plans submitted even attempted to comply with Directive 074. Some plans missed the 2011-2013 schedule for mature fine tailings reduction by several decades. The Pembina Institute and Water Matters laid out the failure of most plans to meet the directive in an extensive analysis.

Faced with the hubris of the oil sands industry, the ERCB again stood up for Directive 074. Commenting on the Pembina-Water Matters analysis for the ERCB, Sheremata stated in the Edmonton Journal, "This is the first time in the history of the oil sands that companies have had to meet this kind of a requirement. We are trying to work with them, but at the end of the day those standards [in Directive 074] will have to be met."

Premier Ed Stelmach stepped up expectations that the province would take serious measures to reduce tailings ponds by declaring both in legislature and in an Earth Day speech that his intention was to eliminate tailings altogether.

One day after Stelmach's Earth Day statement on eliminating tailings, the ERCB demonstrated the distance between the premier's ambitious promises and the ERCB's lacklustre enforcement of its regulations.

On April 23 2010, the ERCB approved plans for Syncrude that did not comply with Directive 074 and would delay implementation of liquid tailings reductions by the oil sands companies. The ERCB approved and will be accepting all three plans, despite the fact that two of the plans, for Syncrude's Mildred Lake and Aurora oil sands mines, do not meet the requirements of Directive 074.

The ERCB has argued that Syncrude will be in compliance by 2015. However, given that Directive 074's defines compliance on a schedule, it is unclear how the ERCB deems reductions compliant that do not meet the 2011-2013 schedule.

The ERCB's decision to approve these plans raises several questions. If the board is willing to approve plans several years out of compliance, where will it draw the line? Will it reject plans for tailings reduction that are out by a decade? Or will it deny the plans that take more than 20 years to "comply"?  Simply put — where is the real line? When does the ERCB use those teeth Sheremata refers to?

The broader questions are equally grave. How seriously one should take the ERCB's directives? If the board will approve development plans not in compliance, why should anyone in the industry work to meet the regulations of Directive 074, or other ERCB directives? As The Water Log heads out for distribution, the ERCB has given its approval to Suncor's tailings pond reduction plans, the only plans Water Matters and the Pembina Institute found in compliance with Directive 074. The ERCB sends a mixed signal message to the public and industry by approving both non-compliant and compliant plans.

With decisions pending from the ERCB on several tailings plans, the board has a chance to salvage its credibility by rejecting non-compliant tailings reduction plans. It remains to be seen if the ERCB will seize the opportunity before it to enforce its own directives and give Albertans confidence it will stand up for the environment.

References:

Cooper, Dave. 2009. New tailings targets elude most oilsands projects-critics. The Edmonton Journal. December 2, 2009. (Accessed May 29, 2010).

Energy Resources Conservation Board. 2009. Directive 74: Tailings Performance Criteria and Requirements for Oil Sands Mining Schemes.

Energy Resources Conservation Board. 2009. ERCB Approves Fort Hills and Syncrude Tailings Pond Plans With Conditions.  (Accessed May 29, 2010).

Fekete, Jason and Lisa Schmidt. 2010. Stelmach to oilsands: no more wet tailings ponds. The Calgary Herald. April 23, 2010. (Accessed May 29, 2010).

Healing, Dan. 2009. Alberta gives 'teeth' to tailings pond rules. The Calgary Herald. February 3, 2009. (Accessed May 29, 2010).

Healing, Dan. 2010. Suncor's oil sands tailings pond plan approved under tougher rules. The Calgary Herald. June 17, 2010. (Accessed June 18, 2010).

Pembina Institute and Water Matters. 2009. Tailings Plan Review: An Assessment of Oil Sands Company Submissions for Compliance with ERCB Directive 074. (Accessed May 29, 2010).