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Environment

The Lie of a Cleaner Oilsands

Pollution protections are stripped while Canada boasts progress. This is the history of promises made and betrayed.

Andrew Nikiforuk 5 Jun 2023The Tyee

Tyee contributing editor Andrew Nikiforuk is an award-winning journalist whose books and articles focus on epidemics, the energy industry, nature and more.

In May 2022 a tailings pond at Imperial’s Kearl Lake facility started leaking toxic waste into groundwater and outside its lease boundaries.

The foul water, the product of bitumen mining, contained arsenic, sulphates and hydrocarbons and other fish-killing pollutants such as naphthenic acids. Exposure to these chemicals can deform frogs and poison fish.

But no one reported the leak to water users living downstream of the massive oilsands project for nine months.

As a result, regulators and industry treated many Northwest Territories communities (13 of 16 communities directly depend on drinking water that flows from the Athabasca River into the Mackenzie Basin) as though they did not exist.

Many First Nations only learned the news when the Alberta Energy Regulator, or AER, reluctantly issued an environmental protection order in February 2023.

It then reported an additional 5.3 million-litre spill from a different Imperial containment system.

The failure of the company and the AER to report the ongoing spills in a timely fashion caused a furor earlier this year.

Laws were broken and bilateral water agreements were ignored. As a result, Environment Canada began an investigation to ostensibly lay charges against Imperial Oil for violating the Fisheries Act.

Meanwhile the industry-funded AER promised an “independent” study on its exposed neglect.

In Ottawa, three days of hearings on the tailing spills before the House of Commons revealed an oilsands regulatory and monitoring program in shambles.

During those hearings First Nation leaders loudly demanded that the federal and Alberta governments stop passing the buck over jurisdiction and honour their respective promises to complete a full-scale audit of tailing pond risks to their communities.

They insisted as well that the governments provide consistent public health monitoring for cancers and cough up an accountable plan for what the AER estimates is $130-billion worth of unfunded reclamation liabilities in the oilsands.

Imperial’s pollution scandal also shed light on one of Canada’s biggest and most long-standing environmental embarrassments, giving a lie to government claims that steady progress is being made towards a well-regulated oilsands that is less polluting.

The oilsands have accumulated vast volumes of toxic mining fluids (1.4 billion litres or more than 540,000 Olympic sized pools) in the world’s third largest watershed under the watch of a captive regulator and an industry-dominated oilsands monitoring program.

The massive dams, all temporary structures not designed for long-term storage, are porous and are located over aquifers or by rivers. They are designed to leak laterally. As a consequence, companies must maintain constant monitoring and pumping programs of their containment systems to prevent seepage into groundwater, peatlands and rivers and eventually into Wood Buffalo National Park, a UNESCO world heritage site and the world’s second largest park. Its wetlands and bufflalo lie directly downstream of the project.

At one time the Alberta government and industry promised to control the proliferation of this mining waste stream with stiff regulations. Industry also boasted that it was spending $1.4 billion on a thousand innovative technologies. But industry ignored 2009 rules to reduce the volume of tailing waste and then regulators abandoned them. Many of the technologies developed remain unproven at scale or can’t deal with timelines for reclamation.

The mining continues at a fevered pace, using three barrels of water to make one barrel of bitumen.

Now government and industry propose to rid themselves of the tailings waste problem with the cheapest possible solution — by minimally treating wastewater by filtering it through petroleum coke (a bitumen byproduct) with the goal of releasing that water into the Athabasca River.

Yet many scientists, Métis, First Nations and the government of the Northwest Territories are entirely opposed to the poorly researched idea. They want to see more scientific research and believe other options, including the full treatment of water contaminated by mining waste to drinking standards, should be considered.

In the meantime, bile duct cancers are increasing downstream of the project.

During the heated hearings on the tailing spills before Parliament’s Standing Committee on Environment and Sustainable Development last month, Indigenous leaders expressed total distrust with the state of monitoring and reporting. They repeatedly castigated the Alberta Energy Regulator as a “joke” or unaccountable.

“All trust with the Alberta government has been broken and has been broken for a long time. They can’t be trusted to oversee the mess,” Athabasca Chipewyan First Nation Chief Allan Adam told the House Committee. The Dene Nation and the government of the Northwest Territories echoed those sentiments.

They weren’t alone. Federal Environment Minister Steven Guilbeault promised more changes and better consultation with downstream communities.

"I think we all recognize that the situation right now is untenable and we can't continue going on this way which is why we're proposing to change the way we do things," he said, speaking to reporters on Parliament Hill.

Schindler’s fight

This bitter scene would be déjà vu to David Schindler. The freshwater ecologist, one of Canada’s greatest scientists, spent years trying to bring greater transparency and accountability to the scientific monitoring of the oilsands and its tailing ponds.

Schindler did so because he feared “a large bitumen or tailings spill under ice on the Athabasca River could potentially rival those of the Exxon Valdez and Deepwater Horizon spills, threatening water and food supplies for Indigenous people who rely on the river.”

He also argued that continued oilsands expansion plans ignored these rising risks and discounted the importance of the Mackenzie watershed to First Nations.

To limit the prospects of such a disaster, Schindler repeatedly criticized the pace of oilsands development. He said it was unconscionable to approve more mines without demanding that companies reduce their tailings and water use.

When that didn’t happen, he used the best freshwater science to expose just how “shoddy” regulatory and monitoring systems for the industry had become.

Then he publicly and politically advocated for better oversight culminating in the creation of Alberta Environmental Monitoring, Evaluation and Reporting Agency, or AEMERA, in 2014.

To his dismay Schindler then watched industry and government dismantle the very agency his science inspired before he died in 2021. It is a damning story with a chronology that marches steadily toward the scandalous Kearl Lake spill and coverup.

1200px version of DavidSchindlerFishLakeAthabasca.jpg
University of Alberta professor David Schindler holds a deformed fish from Lake Athabasca, near Fort Chipewyan, during a press conference in 2010. Before his death in 2021, the esteemed ecologist fought for years for independent oversight of oilsands water pollution, only to see such gains reversed. Photo by Jason Franson, the Canadian Press.

The story of pollution protections fought for, promised and then dashed begins in 2009. That’s when the first of two scientific studies by a team of scientists led by Schindler and then-PhD student Erin Kelly shattered the illusion that the mining and processing of bitumen at one of the world’s largest energy projects had no significant impacts on the Athabasca River and its tributaries.

In 2007 Rob Renner, Alberta’s environment minister, boasted to Schindler that its monitoring program proved that expanding oilsands industry wasn’t having any noticeable effect on water quality in the Athabasca River. Schindler told Renner that couldn’t be true: “I had never seen large-scale clearing of watersheds that did not cause increased erosion of chemicals, nor burning of fossil fuels and smelting of ores that did not cause emissions of acids and toxins to the atmosphere.”

Schindler then acquired funding for research no one had dared do before because of the political power of the multibillion-dollar mining industry and its captured regulators.

In the first study Schindler and others found that oilsands upgrading deposited compounds such as polycyclic aromatic hydrocarbons onto the snow where they melted and flowed in the Athabasca River. (Some of these compounds are carcinogens.)

A companion, released nine months later, found that level of priority or nasty pollutants including cadmium, lead and mercury exceeded aquatic guidelines near oilsands developments including their massive tailing ponds which had been leaking for decades.

To Schindler the studies proved that current oilsands monitoring was “sporadic and poorly designed” and needed reforming.

Two separate investigations by Alberta and the federal governments agreed with his assessment. Like a provincial counterpart study, the federal Oil Sands Advisory Group presented a bleak picture of willful neglect.

The federal panel, for instance, described the industry-funded Regional Aquatics Monitoring Program, or RAMP, as a deficient operation that performed as a bureaucratic check-off-the-box exercise.

“There was no evidence of science leadership to ensure that monitoring and research activities are planned and performed in a co-ordinated way, and no evidence that the vast quantities of data are analyzed and interpreted in an integrated manner,” concluded the report.

RAMP was designed to find no problems and therefore “is not adequate for quantifying ecosystem change as a result of oilsands development.” As a consequence, the panel recommended a new integrated program based on credible science reported in a transparent and accessible way to people who lived downstream of the project.

Both the federal and Alberta government promised to do better with a jointly governed Oil Sands Monitoring Program, or OSM. As Schindler later recalled in 2013: “They proposed that to regain the trust of the public, monitoring should be overseen by a group independent of either level of government. The minister agreed to act on their recommendations and struck new panels to flesh out the details of how this might occur. Finally, I felt that all of our efforts had not been in vain.”

Now, 10 years later, a series of unreported leaks from the megaproject’s tailing ponds and potentially other sources near the Firebag and Muskeg rivers has served to highlight how those changes were successively undermined by industry and its captured regulators.

In fact, the very safeguards and changes that Schindler pushed so hard to implement were dismantled by two successive governments: Rachel Notley’s NDP and Jason Kenney’s United Conservative Party.

Moreover, the budgets for significant components of the Oils Sands Monitoring Program, including surface water quality monitoring, have been subject to repeated cuts. OSM has not issued a single annual report since 2019, when the United Conservative Party assumed power.

To those that participated in the reforms, the results have been all too predictable, says independent scientist William Donahue. Because of repeated research cuts and regulatory capture, “oilsands companies get a regulatory ‘Thumbs up! All's good!' just for paying for the program while also getting to limit what and how much OSM Program scientists and monitoring staff do, where they do it, and when they do it,” Donahue told The Tyee.

“I don't think one could design a better regulatory system for allowing industry to get their cake and eat it, too,” added Donahue.

A former PhD student of Schindler, Donahue briefly served as vice-president and chief monitoring officer at AEMERA before it got dismantled by successive governments.

1200px version of SyncrudeTailingsPond.jpg
A tailings pond at the Syncrude oilsands mine facility near Fort McMurray. In 2019 the Alberta government announced it was reversing 50-year-old 'zero discharge' policies that banned the release of toxic mine tailing waste into the Athabasca River. Photo by Jeff McIntosh, the Canadian Press.

Donahue’s bleak assessment that regulation of the oilsands to protect nature and human health has been put in reverse for nearly a decade is borne out by the chronology provided below.

2014: The promise of reform

After Schindler’s research revealed the inadequacies of oilsands monitoring, the governments of Canada and Alberta started working on jointly managing an Oil Sands Monitoring Program. Given the captured nature of Alberta Environment and its bad reputation, Schindler recommended a separate and independent agency do the job along with Environment Canada. As a result the Alberta government reluctantly complied by establishing the Alberta Environmental Monitoring, Evaluation and Reporting Agency in 2014.

AEMERA would move the environmental monitoring and science resources out of Alberta Environment and bring in new scientific and administrative leadership to run it. Donahue was recruited as vice-president and chief monitoring officer at the new agency, to help lead the design and delivery of OSM.

OSM would also bring Environment Canada and Alberta scientists together to co-ordinate long-term monitoring of the massive industry’s growing impacts on the region’s air, land and water and to track cumulative impacts. A memorandum of understanding between Alberta and Canada promised “to provide the data and information obtained from the [integrated monitoring, evaluation and reporting] System to decision-makers and other stakeholders to inform management and regulatory action.”

Industry funded the program with $50 million a year.

A study for the University of Alberta’s Oil Sands Research and Information Network then highlighted the core environmental problem: “The constant accumulation of mature fine tailings requires more and more ponds for storage; the ponds are a health risk to wildlife and disturb ecosystems in the surrounding area. The economic and environmental concerns created by the proliferating tailings ponds... have become one of the most critical challenges for the oilsands industry and regulators.”

Meanwhile a new federal study estimated that leakage from just one tailing pond into the Athabasca River was probably occurring at a rate of 6.5 million litres per day. The Pembina Institute had previously estimated a leakage rate of 11 million litres from all ponds in 2007 or about 15 to 20 per cent of the volume of new tailings added yearly.

2015: Environment records destroyed

Due to crashing oil prices and growing government incompetence, the NDP surprised themselves by winning the provincial election. In so doing they ended 44 years of one-party rule in Alberta. One day after the election the Tories, who openly promoted and facilitated rapid oilsands development, shredded 344 boxes of executive documents from Alberta Environment, the ministry responsible for oilsands monitoring.

A whistleblower informed authorities that regulations to keep important documents and electronic files as archives were being broken. And that’s what an investigation found, but no charges were laid.

2016: A monitoring agency shut down

On the advice of senior Alberta Environment bureaucrats, the NDP government of Rachel Notley abruptly scrapped the Alberta Environmental Monitoring, Evaluation and Reporting Agency. It called the agency a “failed experiment” and argued that the responsibility of oilsands monitoring should be rolled back into the capable hands of Alberta Environment in a new monitoring and science division.

The NDP reached its conclusions before the agency had barely begun to operate. Staff and budgets had yet to be finalized; and new executive and scientific leadership had barely been hired to lead the reforms.

At the time Schindler strongly protested the decision, arguing that it amounted to putting the fox back in charge of the hen house and that oilsands monitoring would, once again, be subject to regulatory capture.

Alberta Environment promised the Notley government that it would save millions and increase efficiency and program delivery by moving it back into the department. But upon regaining financial and administrative control, its senior administrators cut budgets for monitoring and science resources and staffing.

2018: Massive unfunded oilsands liabilities exposed

In a public presentation Robert Wadsworth, then the vice-president of closure and liability for the Alberta Energy Regulator, admitted that the oilsands industry had a major unfunded liability crisis. While security collected to clean up the tailing ponds and mine sites amounted to $1.4 billion, the admitted liability was closer to $28 billion. But Wadsworth calculated the real estimated liability to be closer to $130 billion. “Even the estimated liability displayed is less than the actual cost,” said Wadsworth.

“Why has there been no political will to make changes to the liability programs? asked Wadsworth. “Until recently, the implications of our flawed system had not been realized.” That flawed system allowed industry to enrich its executives and shareholders.

2019: ‘Zero discharge policy’ for tailings reversed

A year after Wadsworth’s startling presentation on liabilities, the federal and Alberta government announced that they were reversing 50-year-old “zero discharge” policies that banned the release of toxic mine tailing waste into the Athabasca River.

Given the collective failure of industry and government to collect security deposits and their failure to reduce the growing waste problem with regulations and unproven technologies such as end-pit lakes, industry and government now vowed to work on rules to “authorize release of treated effluent.”

Syncrude even proposed to release 500,000 cubic metres of treated wastewater over two years but then withdrew the plan due to lack of science about the environmental consequences.

Schindler called the joint decision to dump tailings waste “desperate” and irresponsible. He argued in the Globe and Mail that “the plan to dump toxic tailings into the Athabasca River should be scrapped.”

2019: More monitoring cuts

Throughout 2019 the government of Jason Kenney restructured oilsand monitoring again, this time by dissolving the government’s entire monitoring division.

Critics warned that the changes would result in budget cuts, lack of focus, loss of consistency and even less transparency. Schindler told the CBC that the province was increasingly moving back to what he had earlier exposed: captured regulators with no accountability. "Anything that could possibly be wrong in the oilsands is now subject to political censorship, so that the public at large will not know whether what they're hearing is straight propaganda or the truth."

The evidence confirmed Schindler’s statements. The Oil Sands Monitoring Program hasn’t produced a public annual technical report since 2019.

Moreover, a review by Alberta’s auditor general found that OSM’s annual reports were clearly deficient: “Information in the report related to the program’s success, progress toward objectives, and funding is incomplete; project status is unclear; and the report is neither timely nor accessible.”

During this period then-premier Kenney set up a government propaganda corporation called the Canadian Energy Centre, known as the War Room, to attack critics of rapid oilsands development. It directly reported to three Alberta government cabinet ministers including the minister of environment, confirming the conflicted nature of the department.

2020: Oil and gas monitoring suspended

During the pandemic the Kenney government abruptly cancelled a broad spectrum of environmental monitoring for the entire oil and gas industry as well as the oilsands. Imperial Oil, for example, asked the regulator if it could be exempt from collecting field data for 2020. The regulator quickly granted the exemption.

Allan Adam, chief of the Athabasca Chipewyan First Nation, protested the exemptions for critical services: “Environmental monitoring and protection are critical elements of oilsands operations that should never be considered optional.”

2020: Tailing leaks confirmed

After a three-year investigation the Commission for Environmental Cooperation released a report on a complaint that the Canadian government wasn’t enforcing laws preventing fish-killing pollution leaking from the tailing ponds. The federal government told the council that it had found elevated pollutants at various tailings ponds but couldn’t tell if they came from natural bitumen deposits or oilsands wastewater.

But the CEC found scientifically valid evidence of tailings seepage into near-field groundwater around tailings ponds. Despite pumping and containment systems “there is both experimental and monitoring evidence for a slow, vertical groundwater seepage pathway that may circumvent these collection systems and contaminate aquifers.”

The CEC also found that the OSM Program “does not have an enforcement mandate but is rather designed to support and inform regulatory and policy decision-making.”

2020: Northwest Territories learns about more monitoring cuts

The government of the Northwest Territories learns that the Alberta government discontinued monitoring at three sites in 2015 and discontinued monitoring at another three sites in 2018 on the Athabasca River and Slave River delta as part of a rationalization ad optimization process.

The Alberta government failed to notify the Northwest Territories about some of the closures in contravention of a bilateral water management agreement it shared with the government of the Northwest Territories. The agreement states that the Northwest Territories and Alberta must keep each other informed “about current and future developments that might affect the Ecological Integrity of the Aquatic Ecosystem of the other Party.”

Northwest Territories Environment Minister Shane Thompson told The Tyee that the Alberta government “did it without us knowing and then we found out.” His government asked to be part of the OSM Program where the decisions were being made about reducing sites, and was told no.

The Alberta government broke the agreement again when it failed to notify the Northwest Territories of the Imperial tailings spill.

2023: Still more cuts to monitoring

Just as industry and government have pressed to “treat and release” tailings wastewater into the Athabasca River, monitoring has steadily decreased.

Some of these funding cuts have been dramatic. For the budget year 2022-23 scientists requested nearly $5.7 million for surface water quality monitoring but officials only granted slightly over $4 million. As a result, much critical field work was not done.

The cuts also reduced the frequency of monitoring this past winter for evidence of contamination by oilsands activities in streams and rivers.

And certain pollutants such as mercury and methyl mercury were eliminated from all sampling events because there wasn’t the money to pay for the analyses.

Donahue, who briefly served as vice-president and chief monitoring officer at AEMERA, told The Tyee that by now, any gains in oilsands accountability had been reversed.

“Decision-making and control over environmental monitoring and science that is supposed to detect environmental effects of oilsands development are now fully back in Alberta Environment's and the oilsands industry's hands.”

A scientifically legitimate OSM Program and the public communication of its findings had effectively become another industry controlled “RAMP 2.0”—the very program Schindler’s studies had exposed as negligent and captured by industry.

2023: No word on plans to release treated water

Transparency about industry’s plans to dump minimally treated water in the Athabasca River remains a critical issue for governments and First Nations living downstream of the project. The OSM, for example, has done scientific studies on “six knowledge gaps” that must be addressed before any agency contemplates such a release.

Syncrude itself notes troubling gaps in what is known. The oilsands giant’s 2020 tailings performance report admits there isn’t enough data to determine “whether the quality of the treated water is suitable for release into the Athabasca River and if it is a viable long-term solution.”

In fact, bitumen tailings water contains numerous toxins for which there are no drinking water standards.

The Alberta government has shared the documents with the government of the Northwest Territories but not with the public. “We’ve asked that it should be shared publicly," Northwest Territories Environment Minister Shane Thompson told The Tyee. “They said only they will get back to us.”

The budget for at least one scientific study intended to inform leaders and regulators of baseline conditions in the Athabasca River downstream of intended tailings releases was cut by OSM Program prior to its completion.

Nor have industry or the Alberta government presented options other than releasing minimally treated toxic water into the watershed.

These options, say experts, could include the construction of desalination projects or full-scale water treatment systems that remove all salts and toxins from the mining waste. But because those are costly, industry and governments which derive revenue from oilsands production, have largely avoided their discussion.

Northwest Territories’ Thompson, for example, has repeatedly asked the Alberta government what other options are being considered. “I can’t get a straight answer to that question,” he said.

2023: Irregular reporting data on tailing spills

The ecologist Kevin Timoney recently looked at Alberta regulatory data on tailing releases in the oilsands and found some anomalies.

Since 2014, based on industry reporting, the regulator claims that industry recovered 100 per cent of all tailings spills in 75 per cent of 507 releases. Yet industry generally only recovers 10 to 30 per cent of an oil spill and even less in aquatic environments.

Timoney has now asked the Alberta regulator for an explanation: “Would you please explain how 100 per cent recovery was attained in 75 per cent of the tailings spills? Would you please provide the data submitted by industry that document how the 100 per cent recovery was accomplished at each of those spills?”

In all 507 tailings releases, the regulator lists the owner of the tailing pond as “UNKNOWN.” “Why is the licensee not provided when the licensee reported the release to the AER and is therefore known?” asked Timoney last month in the letter to the Alberta Energy Regulator. He has yet to receive any answers to his queries.

2023: Reporting again judged ‘ineffective’

In March Alberta’s auditor general revealed, once again, that reporting by the Oil Sands Monitoring Program remains chronically “ineffective.”

Beginning in 2014 the auditor found that OSM’s annual reports weren’t complete, timely or accessible. In 2023 the auditor general again found the same deficiencies and warned:

“Without complete, timely and accurate public reporting on the Oil Sands Monitoring Program activities and results, stakeholders may not have access to sufficient information to assess whether the government is meeting its commitment to ensure environmentally responsible development of the oilsands.”  [Tyee]

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