Alberta energy watchdog fends off challenge

CALGARY — Alberta’s energy watchdog says it won’t reverse its approval of Syncrude’s plan to manage harmful waste from its oilsands mines, prompting environmental groups to call the regulator’s rules “toothless.”

CALGARY — Alberta’s energy watchdog says it won’t reverse its approval of Syncrude’s plan to manage harmful waste from its oilsands mines, prompting environmental groups to call the regulator’s rules “toothless.”

“This decision sets a very bad legal precedent,” said Ecojustice lawyer Barry Robinson.

“In effect, the ERCB is saying, ’We can make the rules,’ and then, ’We can decide who to exempt from the rules.’ There is little point in having tailings management regulations if they are not going to be acted upon and enforced.”

Ecojustice — on behalf of the Pembina Institute and Water Matters — in August challenged the Energy Resources Conservation Board’s decision to give the thumbs-up to Syncrude’s tailings reduction plan.

The plans should not have been approved because they don’t comply with the ERCB’s Directive 74, which orders oilsands miners to gradually close down their tailings ponds, the groups argued.

Tailings — a mixture of sand, clay, water and residual bitumen — are a byproduct of the oilsands extraction process and have drawn a great deal of concern for their environmental impact. In 2008, 1,600 birds died after landing on a Syncrude tailings pond.

Directive 74 says tailings must be cut by 20 per cent between this year and next, 30 per cent between 2011 and 2012 and 50 per cent between 2012 and 2013.

Ecojustice released a letter Thursday in which ERCB chairman Dan McFayden rejected the groups’ demand that the regulator revoke its approval of Syncrude’s plans.

Under the approved plans, Syncrude will only be able to capture 35 per cent of its tailings by 2013, rather than 50 per cent.

But Directive 74 gives the ERCB “clear and explicit discretionary authority” to take into account the “unique circumstances” of individual oilsands mining operators, McFayden wrote in the letter, dated Dec. 1.

“This express discretion and flexibility is necessary to determine the most appropriate, project-specific manner in which to achieve the ultimate goals of reducing fluid tailings and creating trafficable surfaces,” McFayden rote.

“It also recognizes the potential negative implications of rigidly applying mandatory requirements to all oilsands operations, without regard for the unique circumstances and the complex and evolving technologies involved in individual mining projects.”

In order to meet the directive, Syncrude said it wanted to build a new plant to separate fine clay particles from water, as well as a supplemental tailings plant.

“We’re talking about $1-billion in upgrades here, but they would not be in operation until 2012 through 2015,” said ERCB spokesman Davis Sheremata.

“We looked at it. We saw that the flexibility was warranted. We gave it to them.”

In the end, Syncrude will meet or exceed the goals of Directive 74, Sheremata added.

So far, two tailings proposals submitted by Suncor Energy Inc. (TSX:SU) are the only ones to fully meet Directive 74.

In addition to Syncrude, the ERCB has given conditional approvals to Imperial Oil Ltd. (TSX:IMO) and Shell Canada Ltd. (NYSE:RDS) for their proposals.

The ERCB is still reviewing plans for Canadian Natural Resources Ltd.’s (TSX:CNQ) Horizon mine and Shell’s Jackpine mine.

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