October 4, 2023
Edmonton, AB – A review of the Alberta Energy Regulator (AER), the arm’s length regulatory body responsible for oversight of Alberta’s oil sands, has determined that the provincial regulator was fully compliant with their protocols in response to the disastrous tailings pond spill and long-term seepage at Imperial Oil’s Kearl oil sands mine.
The review was specific to a nine-month period between May 2022 and February 2023, initiated by the discovery of discoloured water by Imperial Oil and reported to the regulator, and bookended by a public Environmental Protection Order (EPO) for a subsequent large spill. The review assessed the regulator’s communications over that period of time, during which downstream Indigenous rightsholders say they were insufficiently notified of the incident. The public and Indigenous communities learnt of the severity of the tailings leak in February 2023 through the EPO, which was posted publicly.
The independent review finds the AER blameless, but it does, however, describe seven areas for improvement for AER policies.
“This review paints a bleak picture of the provincial regulator’s ability to protect Albertans and the environment from the harms of oil sands tailings,” says Gillian Chow-Fraser, Boreal Program Director. “The regulator’s actions shouldn’t be considered adequate just because they followed protocol, the take-away from the story should be that the protocol itself is problematic.”
The review describes an AER process wherein there is no need to notify communities of significant developments in an incident investigation. Even when the fluid was determined to have originated from a tailings pond, or when the incident was escalated to the Major Investigations team, the AER was not required to notify Indigenous communities nor the public. Worse yet, recently leaked internal reports show that the regulator actually became aware of the uncontrolled leak at the oil sands mine several years earlier. Imperial’s groundwater monitoring reports showed evidence of increasing seepage from its tailings pond since 2019 – extending the timeline for tailings seepage by three years.
This reflects a systemic problem wherein the regulator and the company are choosing to withhold information that is needed for downstream communities to assess safety of hunting and fishing in an area, and for the general public to be informed of harm to the environment caused by the industry.
“We now know the tailings pond has been leaking uncontrollably for years. It’s hard to believe that any responsible industry, or regulator of an industry, would allow a toxic leak to continue for so long without any repercussions,” says Chow-Fraser.
Imperial Oil has recently provided an update on their website about the original seepage. While they note the results of water monitoring tests are now “stable,” we would expect the results to show improvement, not maintaining the same levels of contaminants if the source of the leak was controlled.
CPAWS Northern Alberta would like to see further explanation from the regulator and the Government of Alberta as to why the notice of non-compliance, issued on September 2, 2022, was not posted publicly. This was issued after it was confirmed the seepage was from process-affected fluids. CPAWS also seeks explanation on what factors determined the incident would be escalated to the regulator’s Major investigations Team, but that the public and the communities were not informed of this at that time. More broadly, this investigation makes it clear that current Alberta Energy Regulator policies and regulations are failing to manage environmental harms, failing to inform the public of those harms, and must be comprehensively reassessed and improved.
- The incident in question first began in May 2022, when Imperial Oil found discoloured water off site that would later be confirmed to have originated from one of their tailings ponds. At that time, Indigenous Nations were provided one email of notification. Recently released records of those emails indicate the message had limited and vague information, stating only that “Imperial’s environmental consultant reported discoloured water and vegetation north and north-east of the Kearl lease boundary during recent routine groundwater sampling.” The review report comments that the notification “leaves much up to the reader’s interpretation” and requires increased clarity.
- There were no further meetings or notifications about the seepage, even though the regulator and the company had an ongoing investigation which confirmed several times that the seeping fluid was from a nearby tailings pond.
- Nine months later, Indigenous communities learned of the full extent of the seepage when an additional 5.3 million litres spilled onto public lands and the regulator issued an “Environmental Protection Order” (EPO).
- The federal government continues to look into the incident at the Kearl mine. Canada has opened an investigation into the tailings incident (the 5.3 million litre spill) under the Fisheries Act. The investigation will assess whether hazardous materials entered water used by fish, or if the hazardous materials could enter such waters. This escalation of the file could lead to potential prosecution. Canada has already confirmed presence of hydrocarbons and naphthenic acids in a fish-bearing lake on site.
- Learn more here: CPAWS Northern Alberta Kearl Info Hub
Read the 15-page external report here.
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