Posted on December 9, 2010 (updated: December 9, 2010)

Tailings regulations all bark, no bite

CALGARY — 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 Oil Sands 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 oil sands 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.


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